2018-14

IN RE: Proposed Amendment of Kentucky Rules of Evidence (KRE)

ORDER

This Court is advised that pursuant to KRE 1103(b). a meeting of the Evidence

Rules Review Commission was called by the Chief Justice to review a proposed amendment to the Kentucky Rules of Evidence, an addition of a new section KRE 807, a copy of which is attached. Amendments to the Kentucky Rules of Evidence are governed by KRE 1102 which: in subsection (a) grants the Supreme Court of Kentucky the power to prescribe amendments or additions to the Kentucky Rules of Evidence; in subsection (b) sets out the procedure for the General Assembly to adopt amendments to the Kentucky Rules of Evidence that do not constitute rules of practice and procedure, granted solely to the Supreme Court of Kentucky in Section 116 of the

Kentucky Constitution; and in subsection (c) requires that “(n)either the Supreme Court nor the General Assembly should undertake to amend or add to the Kentucky Rules of

Evidence without first obtaining a review of the proposed amendments or additions from the Evidence Rules Review Commission.” Said rule provides a clear amendment process agreed to in 1992 by the General Assembly in HB 241 and by the Supreme

Court of Kentucky. The Supreme Court of Kentucky, by order entered May 12, 1992, adopted the portions of the Kentucky Rules of Evidence that came within the rule making power of the Court, pursuant to Ky. Const. Sec. 116. The Court did not adopt the Commentary prepared to the KRE. Pursuant to the call of the Chief Justice, The Kentucky Evidence Rules Review

Commission (KERRC) met on several occasions to consider the proposed addition of

KRE 807, taking testimony from presenters and reviewing surveys of the laws and rulings of other states, before issuing a recommendation against the adoption of the proposed amendment to the Kentucky Rules of Evidence (The Recommendation of the

KERRC and the Minority Report are attached hereto.) Additionally, this Court heard comment upon the proposal during the Annual Convention of the Kentucky Bar

Association and received and reviewed written comment thereon.

Upon review, the Supreme Court of Kentucky hereby adopts the recommendation of the Kentucky Evidence Rules Review Commission and thereby declines to adopt the proposed amendment. This Court recognizes the concern addressed in the proposed amendment and would consider alternate approaches upon presentation of future proposals.

All sitting. All concur.

ENTERED: September 21, 2018. KENTUCKY EVIDENCE RULES REVIEW COMMISSION RECOMMENDATION

I. Background

The purpose of evidence law is to aid the trier of fact in the search for the truth. Ihe Kentucky Rules of Evidence are a codification of the law of evidence, developed through a lengthy deliberative process and adopted by both the Kentucky General Assembly and the Kentucky Supreme Court for application, with limited exceptions, in all courts and all cases in the Commonwealth. The work of this Evidence Rules Review Commission is an extension of the original process for developing and adopting the Rules and is specifically sanctioned by KRE 1102(c).

The Proposed Rule brings into play two fiindamental principles of the law of evidence as embodied in the KRE. The first is that all relevant, competent evidence should be admitted absent a compelling; justificatibh to deny its adimssidn.’The second,which findsits expressionin the hearsay rule, is that out-of-court statements offered to prove the truth of their contents should generally be excluded.

The hearsay rule is premised on the well-founded conviction that most out-of-court statements lack sufficient trustworthiness to be admitted into evidence. They are not typically made under oath or subject to the scrutiny of cross-examination, and the trier of fact cannot observe and judge the credibility of the person making the statement. However, the numerous exceptions to the hearsay rule (there are a total of 27) bear witness to the many circumstances in which out-of-coiul statements are deemed sufficiently trustworthy to be admitted.

An examination of the existing exceptions reveals the following: (1) numbers can be deceiving“16 of the 27 exceptions relate to documents (e.g., business records, public records, past recollections recorded) and three of the exceptions relate to reputation (e.g., personal and family history, property boundaries); (2) except for three seldom-used exceptions relating to real estate, none of the exceptions is case or subject matter specific; (3) none of the current exceptions are premised upon the age or disability of the declarant; (4) one exception allows for the admission of former testimony that was the subject of direct, cross, and redirect examination; and (5) one exception is for statements of personal and family history.

The other six exceptions, which tend to have application in the broadest range of cases, are based upon centuries of human experience that provide strong circumstantial guarantees of trustworthiness not otherwise found in out-of-court statements. They are; present sense impressions; excited utterances; statements of then-existing mental, emotional or physical condition; statements for the purpose of medical treatment or diagnosis; statements under a belief of impending death (so-called "dying declarations"); and statements against interest. It is against this backdrop that the Proposed Rule must be evaluated. II. The Proposed Rule

The Proposed Rule attempts to address a terrible and frightening situation—the physical and sexual abuse of young children. The targeted conduct is horrific, the victims fragile and almost always defenseless, and the harm to society great. The Proposed Rule would: apply only in situations involving the alleged physical or sexual abuse of children; allow the admission of out-of-court statements by declarants 12 years old or younger, which are determined by the court in a pretrial proceeding to have sufficient circumstantial guarantees of trustworthiness and which are not primarily testimonial in nature. The out-of-court statements would only be admitted if the child testifies, but the testimony does not include information contained in the out-of-court statements or if the child's testimony is not reasonably obtainable and there is corroborative evidence of the act that is the subject of the statement. The child's testimony is "not reasonably obtainable" for purposes of the exception if, among other justifications, the child claims a lack of memory of the subject matter or if the court finds that the child is unable to testify at the trial or hearing because of "infirmity, including the child's inability to communicate about the offense because of fear or a similar reason" and if that situation would not improve if the trial were delayed.

It will be noted that the proposed rule would break new ground in a number of respects. First, it is subject matter or case specific, applying only to situations of physical and sexual abuse of children, and is likely to be used only in criminal and domestic relations cases. Second, it is limited by the age of the declarant. Third, it only applies to statements made by the victim of the alleged abuse. Fourth, it creates a new concept of declarant unavailability, which according to information presented to the Commission, would most often come into play when, due to anxiety over the proceedings, fear of the defendant, or the influence of other adults, the child simply czinnot bring himself or herself to testify (the child experiences "vapor lock" in the words of the prosecutors). Fifth, instead of reliance upon long-recognized guarantees of trustworthiness that underpin traditional hearsay exceptions, it places upon the trial court the responsibility for making pre-trial determinations of the trustworthiness of out-of-court statements as the avenue for admissibility. The process envisioned by this rule is presumably similar, albeit tailored to the specific type of conduct at issue, to that envisioned by the "residual hearsay rule" which the Kentucky Supreme Court rejected at the time of its initial adoption of the Rules of Evidence.

The author and the proponents of the Proposed Rule have indicated that it is modeled largely on the statute which has been in place for several years in Ohio. The application of the Ohio rule was tested and upheld by the United States Supreme Court in the case of Ohio v. Clark, 135 S. Ct. 2173 (2015); 192 L.Ed.2d 306. However, the Supreme Court found in that case that the out-of-court statements were not testimonial in nature (they were made in the context of an ongoing emergency involving suspected child abuse, were made to teachers aimed at identifying and ending the threat; the conversation was informal and spontaneous; the statements were made to persons not principally charged with uncovering and prosecuting criminal behavior); thus the admission of those statements into evidence did not violate the confrontation clause of the Sixth Amendment. By way of contrast, the Supreme Court of Ohio in the case of Ohio V. Arnold, 126 Ohio St.3d 290 (2010), held that statements of a child victim made to interviewers at a child advocacy center that served primarily a forensic or investigative purpose were testimonial such that their admission at trial violated the defendant's confrontation rights. The interview process at the child advocacy center as described in that case is remarkably similar to the process that typically takes place at Kentucky child advocacy centers as described for the Commission. As noted above, the Proposed Rule does make provision for the exclusion of testimonial statements, but it is of concern that the process envisioned by proponents of the proposed rule may well be one that produces statements ultimately inadmissible under the Confrontation Clause of the Sixth Amendment.

The Commission was presented with a survey of laws and rulings in other states which address matters similar to the Proposed Rule. A review of the survey reflects that 10 states, including Kentucky, have not adopted a comparable rule of evidence; six states have such rule on the books, but it has yet to be challenged in a reported court decision; seven states have such a rule but require the child to be available and subject to cross-examination either at trial or at pretrial proceedings; three states have allowed the same type out-of-court statements to be admitted imder other hearsay exceptions such as the residual rule or the excited utterance exception; three states have very narrow exceptions such as allowing the out-of-court statements only to support a confession or only allowing statements made by the victim to the first person he or she encounters after the alleged incident who is over 18 years of age; the rule has been struck down in a two states due to confrontation clause issues; and a significant number of states (as many as 17) have broad rules comparable to the Proposed Rule that have withstood judicial challenges.

III. Other Protective Measures for Child Victims as Witnesses

The Proposed Rule is not the first effort emanating from the Kentucky General Assembly to address the admissibility of out-of-court statements made by children who are alleged to have been the victims of sexual abuse. In Drumm v.Commonwealth, Ky., 783 S.W.2d 380 (1990), the Kentucky Supreme Court considered the constitutionality of KRS 421.355 which had been enacted by the legislature in 1986 and provided:

“(1) Notwithstanding any other provision of law or rule of evidence, a child victim’s out-of-court statements regarding physical or sexual abuse, or neglect of the child are admissible in any criminal or civil proceeding, including a proceeding to determine the dependency of the child, if, prior to admitting such a statement, the court determines that;

(a) The general purpose of the evidence is such that the interest of justice will best be served by admission of the statement into evidence; and

(b) The statements are determined by the court to be reliable based upon the court’s consideration of the age and maturity of the child, the nature and duration of the abuse, the emotional or psychological effects of said abuse or neglect upon the child, the relationship of the child to the offender, the reliability of the child witness, and the circumstances surrounding the statement.

(2) If the statement is admitted into evidence each party may call the child to testify and the opposing party may cross-examine the child.” The Supreme Court struck down this statute with strong language, holding:

. The present statute transgresses established procedure relating to the competency of children to testify as witnesses, usurps the power of the judiciary to control procedure, and violates Sections 27 and 28 of the Constitution of Kentucky. These Sections establish the judiciary as 'a separate body of magistracy' and constitutionalize the doctrine of separation of powers . . . The Kentucky Constitution, Sections 115 and 116, establish the judicial rulemaking power. Section 116 specifies inter alia, that the Supreme Court shall prescribe the 'rules of practice and procedure for the Court of Justice' . . . Fundamental guarantees to the criminally accused of due process and confrontation, established by both the United States and Kentucky constitutions, are transgressed by a statute purporting to permit conviction based on hearsay where no traditionally acceptable and applicable reasons for exceptions apply. The reasons for exceptions to the hearsay rule are grounded not just on the need, but on guarantees of trustworthiness which are the substantial equivalent of cross- examination."

The Court in Drumm noted that it had previously declared unconstitutional a companion statute, KRS 421.350 (which provides for out-of-the-courtroom closed circuit and videotaped testimony of child sexual abuse victims), in the case of Gaines v.Commonwealth, 728 S.W.2d 525 (1987). However, a reading of the Gaines opinion seems to indicate that the Court's decision was premised upon the use of the statutory procedure without the Court first having made a determination of the competency of the child to testify at ail. That critical omission was deemed to be a violation of the separation of powers doctrine and the Court's authority to control its practice and procedure. Moreover, that statute has remained on the books and was cited favorably by the Kentucky Supreme Court some eight years later in Danner v. Commonwealth, 963 S.W.2d 632(1998).

In 1992, perhaps in response to the Drumm decision, the General Assembly adopted KRS 26A.140 which, in appropriate cases, allows the use of procedures to shield children who testify from visual contact with the alleged perpetrator. The application of that statute was recently considered by the Kentucky Court of Appeals in the case of J.E. v. Commonwealth, 521 S.W.3d 210 (2017), in which it was held that the screening procedures implemented by the District Court violated the defendant's right of confrontation because the District Court failed to find a compelling need for such screening before allowing it to be used. That case bears full reading-it makes clear that both KRS 26A.140 and KRS 421.350 remain viable tools, under appropriate circumstances, to protect young child witnesses who are alleged to be victims of sexual abuse; and it contains an excellent review of the requirements of the confrontation clause as applied in such cases.

The above-referenced statutes and cases are attached to this memorandum for review by the Commission. Taken together, they demonstrate that the kinds of protections sought for children in the Proposed Rule are largely afforded, in compliance with the requirements of due process and the confrontation clause, by existing protective measures without the need for expanding the hearsay rule. IV. Conclusions

The Proposed Rule is a worthy attempt to address a difficult situation that arises in a small number of instances, in a specific set of circumstances involving an especially fragile class of victims. The author and proponents of the rule have amended certain of its provisions in response to concerns raised by Commission members and are to be applauded for their efforts in that regard. Nevertheless, the Proposed Rule conflicts with the fundamental premise that the search for the truth is aided by the ability of an accused to confront and cross-examine the accuser in the presence of a jury of peers. In addition, the Proposed Rule represents a significant departure from the established framework of the hearsay rule as embodied in the current rules of evidence, introducing a number of new concepts which may not only have unintended consequences in the targeted cases but which may lay the foundation for other proposed exceptions to the hearsay rule in support of other categories of sympathetic victims in other types of difficult cases. In the end, the balance of these concerns weighs against adoption of the Proposed Rule.

990035.880035/7652367.1 421,350 Testimony of child allegedly victim of illegal sexual activity. (1) This section applies only to a proceeding in the prosecution of an offense, including but not limited to an offense under KRS 510.040 to 510.155, 529.030 to 529.050, 529.070, 529.100, 529.110, 530.020, 530.060, 530.064(I)(a), 531.310, 531.320, 531.370, or any specified in KRS 439.3401 and all dependency proceedings pursuant to KRS Chapter 620, when the act is alleged to have been committed against a child twelve (12) years of age or younger, and applies to the statements or testimony of that child or another child who is twelve (12) years of age or younger who witnesses one of the offenses included in this subsection. (2) The court may, on the motion of the attorney for any party and upon a finding of compelling need, order that the testimony of the child be taken in a room other than the courtroom and be televised by closed circuit equipment in the courtroom to be viewed by the court and the finder of fact in tlie proceeding. Only the attorneys for the defendant and for the state, persons necessary to operate the equipment, and any person whose presence the court finds would contribute to the welfare and well­ being of the child may be present in the room with the child during his testimony. Only the attorneys may question the child. The persons operating the equipment shall be confined to an adjacent room or behind a screen or mirror that permits them to see and hear the child during his testimony, but does not permit the child to see or hear them. The court shall permit the defendant to observe and hear the testimony of the child in person, but shall ensure that the child cannot hear or see the defendant. (3) The court may, on the motion of the attorney for any party and upon a finding of compelling need, order that the testimony of the child be taken outside the courtroom and be recorded for showing in the courtroom before the court and the finder of fact in the proceeding. Only those persons permitted to be present at the taking of testimony under subsection (3) of this section may be present during the taking of the child’s testimony, and the persons operating the equipment shall be confined from the child's sight and hearing as provided by subsection (3) of this section. The court shall permit the defendant to observe and hear the testimony of the child in person, but shall ensure that the child cannot hear or see the defendant. The court shall also ensure that: (a) The recording is both visual and oral and is recorded on film or videotape or by other electronic means; (b) The recording equipment was capable of making an accurate recording, the operator was competent, and the recording is accurate and is not altered; (c) Each voice on the recording is identified; and (d) Each party is afforded an opportunity to view the recording before it is shown in the courtroom. (4) If the court orders the testimony of a child to be taken under subsection (2) or (3) of this section, the child may not be required to testify in court at the proceeding for which the testimony was taken, but shall be subject to being recalled during the course of the trial to give additional testimony under the same circumstances as with any other recalled witness, provided that the additional testimony is given utilizing the provisions of subsection (2) or (3) of this section. (5) For the purpose of subsections (2) and (3) of this section, "compelling need" is defined as the substantial probability that the child would be unable to reasonably communicate because of serious emotional distress produced by the defendant's presence. Effective: June 25, 2013 History: Amended 2013 Ky. Acts ch. 25, sec. 21, effective June 25, 2013. — Amended 2008 Ky. Acts ch. 58, sec. 1, effective July 15, 2008. — Amended 2007 Ky. Acts ch. 19, sec. 10, effective June 26, 2007. -- Amended 2006 Ky. Acts ch. 182, sec. 63, effective July 12, 2006. — Amended 1996 Ky. Acts ch. 178, sec. 1, effective July 15. 1996. — Amended 1986 Ky. Acts ch. 439, sec. 2, effective July 15, 1986. -- Created 1984 Ky. Acts ch. 382, sec. 19, effective July 13, 1984. rofehlldrep. (1) Courts shall implement measures to accommodate the special needs of children which are not unduly burdensome to the rights of the defendant, including, but not limited to: (a) Trained guardians ad litem or special advocates, if available, shall be appointed for all child victims and shall serve in Circuit and District Courts to offer consistency and support to the child and to represent the child's interests where needed. (b) During trials involving child victims or child witnesses, the environment of the coiulroom shall be modified to accommodate children through the use of small chairs, frequent breaks, and the use of age appropriate language. (c) Children expected to testify shall be prepared for the courtroom experience by the Commonwealth's or county attorney handling the case with the assistance of the guardian ad litem or special advocate. fri appropgiate..cases..gio^dqres shali be-used to shield children from visyal'

(2) The Supreme Court is encouraged to issue rules for the conduct of criminal and civil trials involving child abuse in which a child victim or child witness may testify at the trial. Effective: July 14, 1992 History: Created 1992 Ky. Acts ch. 351, sec. 9 , effective July 14,1992. Drumm v. Commonwealth

W Warning As of; January 5, 2018 7:00 PM Z

Drumm v. Commonwealth

Supreme Court of Kentucky January 18, 1990, Decided Nos. 87-SC-848-MR, 87-SC-849-MR

Reporter 783 S.W.2d 380 *; 1990 Ky. LEXIS 3 ** Ky. Rev. Stat. Ann, § 421.355 was unconstitutional BRUCE DRUMM, APPELLANT v. because it denied defendants fundamental rights of COMMONWEALTH OF KENTUCKY, APPELLEE due process and confrontation by permitting their AND KAREN DRUMM, APPELLANT v. convictions based upon hearsay where no COMMONWEALTH OF KENTUCKY, APPELLEE traditionally acceptable and applicable reasons for Prior History: [**1] APPEAL FROM BULLITT exceptions applied. The court adopted the CIRCUIT COURT, HON. OLGA S. PEERS, application of Fed. R. Evid. 803(4) to cases SPECIAL JUDGE, INDICTMENT NOS. 86-CR- involving the admissibility of statements made by 065, 070 AND 073. the children to treating physicians. The court held that there was little doubt, once the commonwealth APPEAL FROM BULLITT CIRCUIT COURT, HON. conceded the evidence regarding the hearsay OLGA S. PEERS, SPECIAL JUDGE. statements made by the daughter was INDICTMENT NOS. 86-CR-066, 071 AND 074. inadmissible, that the use of such evidence so seriously prejudiced the case involving the Disposition: REVERSING offenses charged as to the son, that the trial on these charges was fundamentally unfair, and a Case Summary retrial was required as to both defendants.

Outcome Procedural Posture Defendants' convictions on all charges were Defendants, father and mother, were indicted for reversed, and the case was remanded to the lower sexually abusing their children. The Bullitt Circuit court for further consideration. Court (Kentucky) entered judgments convicting and sentencing defendant father of first-degree Counsel: Attorneys for Appellant, Bruce Drumm: rape and first-degree sodomy of his daughter, and David Murrell, Public Advocate. Louisville. first-degree sodomy of his son. Defendant mother Kentucky. was convicted and sentenced for the same Attorneys for Appellant, Karen Drumm; Elizabeth offenses based on complicity. Both defendants Shaw, Richmond, Kentucky. appealed. Attorneys for Appellee. Frederic J. Cowan, Overview Attorney General, Lana Grandon, Asst. Attorney The major issue on both appeals was whether the General, Frankfort, Kentucky. admissibility of various out-of-court statements incriminating the defendants made by both children Judges: Opinion Of The Court By Justice to various persons involved in their care and Leibson. Gant, Lambert, Leibson and treatment after they were removed from Wintersheimer JJ., concur. Vance, J., dissents by defendants' home was proper. The court held that separate opinion in which Stephens. C.J. and Drumm v. Commonwealth

Combs, J., join. Sec. [**3] 2.20(A) (1984). Before admitting such evidence the burden is on the Commonwealth to Opinion by: LEIBSON establish a reason to apply some well-defined exception. The principle involved is thus stated in Opinion Rule 404(b) of the Federal Rules of Evidence;

"Other Cnmes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible [*380] Bruce Drumm has been convicted of first- degree rape and first-degree sodomy of his to prove the character of a person in order to show action in conformity therewith. It may, daughter, A.D. (then 3-years old), and first-degree sodomy of his son, S.D. (then 6-years old). Karen however, be admissible for other purposes, Drumm, his wife and the children's mother, has such as proof of motive, opportunity, intent, been convicted for the same offenses based on preparation, plan, knowledge, identity, or complicity. Both have been sentenced to life absence of mistake or accident." imprisonment for each of the three offenses, the Before any of these reasons for making an sentences to run concurrently. They appeal to the exception applies, it must first be an issue in the Supreme Court as a matter of right. case. The Commonwealth's theory of the case was that Specifically, with reference to uncharged acts of the acts charged, and other deviant sexual sexual misconduct by the accused with his alleged behavior involving the children, were part of the victim, in Pendleton v. Commonwealth, Ky., 685 couple's degenerate lifestyle. The S.W.2d 549 (1985), we stated that evidence of Commonwealth, [**2] by evidence, argument and "independent sexual acts" would be "admissible if innuendo, introduced a vast array of deviant, such acts are similar to that charged and not too sordid and bizarre sexual [*381] activity before remote in time, provided the acts are relevant to the jury, including the suggestion that the children prove intent, motive or a common plan or pattern of were used as part of a scheme to produce and sell activity." [Emphasis added.] Id. at 552. pornography. The problem in the present case is that the trial One of the major problems with this case is the proceeded, not [**4] on the premise that such substantial amount of testimony devoted to deviant evidence is inadmissible unless there was reason sexual misbehavior of all kinds, much of which to make an exception, but from the opposite classifies as uncharged collateral criminal activity. premise. As stated in Lawson, supra. Sec. 2.20, Because these convictions must be reversed on pp. 42-43, before admitting such evidence the trial other grounds, we will not undertake in this opinion judge should consider; to sort out which portions of this evidence were admissible, and which were not, and wherein "One - Is the evidence relevant for some objection to inadmissible evidence was preserved purpose other than to prove criminal for appellate review by appropriate predisposition of the accused? contemporaneous objection. Sorting this out is probably a practical impossibility given the confused state of the record. It suffices to say that Two — Is proof of the other crime sufficiently evidence should have been admitted or excluded probative of its commission to warrant by applying recognized rules and exceptions. The introduction of the evidence against the "General Rule" is "evidence of the commission of accused? crimes other than the one that is the subject of a charge is not admissible to prove that an accused Three — Does the probative value of the is a person of criminal disposition." Lawson, The evidence outweigh its potential for prejudice to Kentucky Evidence Law Handbook, 2d ed.. the accused?" Drumm v. Commonwealth

In the present case there was considerable consideration of the age and maturity of the comment, and some highly questionable evidence, child, the nature and duration of the abuse, the involving sexual activity not of a similar nature to emotional or psychological effects of said the crimes charged, which was inadmissible if abuse or neglect upon the child, the properly objected to. There is extensive debate as relationship of the child to the offender, the to when, where and whether error was preserved. reliability of the child witness, and the On retrial the court should require the circumstances surrounding the statement. Commonwealth to establish a proper basis before (2) If the statement is admitted into evidence admitting evidence of collateral criminal activity, each party may call the child to testify and the including a need for such evidence, and that its opposing party may cross-examine the child." probative value outweighs its inflammatory effect. On the other hand, defense counsel should At the outset we note that the statute requires none delineate r*5] what evidence is objected to and of the traditional reasons for making exceptions to why. the hearsay rule. Further, although it contemplates a preliminary hearing and findings before a child The major issue on both appeals is the victim's out-of-court statements are admitted, the admissibility of various out-of-court statements record before us is devoid of such preliminary incriminating the appellants made by both children hearing and it is at best debatable whether the trial to various persons involved in their care and court made all of the findings specified in the treatment after they were removed from the statute. Numerous objections were made appellants' home. In varying amounts these against [**7] the use of these statements, persons were also involved in investigating and particularly as to statements allegedly made by the preparing the various cases against the appellants, 3-year old daughter whom the court ruled either the criminal cases, the Department of incompetent to testify, although when and where Welfare's child abuse and neglect charges, or both. the objections were sufficient to preserve a claim of The persons testifying to these incriminating error is debatable. statements included social [*382] workers, a foster parent, a police officer, two psychologists In many instances the out-of-court statements and a psychiatrist, and personnel at the Home of were made under questionable circumstances the Innocents where the children were lodged in where, even utilizing the statute, even had there public care for a portion of the time. The trial court been a preliminary determination such as the new admitted these statements pursuant to H.B. 664, statute contemplates, admitting the statements Ch. 439, Ky. Acts (1986), codified as KRS would be an abuse of statutory grant of discretion. 421.355, which states as follows: Again, we need not decide where error was sufficiently preserved, and where it was not, "(1) Notwithstanding any other provision of law because the new statute is, in its entirety, an or rule of evidence, a child victim's out-of-court unconstitutional exercise of judicial rule-making statements regarding physical or sexual abuse, power by the General Assembly, so the statute or neglect of the child are admissible in any should not have been utilized in any event. criminal or civil proceeding, including a proceeding to determine the dependency of This new statute is a companion to KRS 421.350, the rei child, if, prior to admitting such a which we declared unconstitutional in Gaines v. statement, the court determines that: Commonwealth, Ky., 728 S.W.2d 525 (1987). It is (a) The general purpose of the evidence is unconstitutional for the same reasons. As in such that the interest of justice will best be Gaines, the present statute transgresses served by admission of the statement into established procedure relating to the competency evidence; and of children to testify as witnesses, usurps the (b) The statements are determined by the court power of the judiciary 4o control procedure, and to be reliable based upon the court's violates’ [**8] »Sections 27 and 28 of the Constitution of Kentucky. These Sections establish Drumm v. Commonwealth

the judiciary as "a separate body of majistracy" and to testify about the hearsay statements made by constitutionalize the doctrine of separation of A.D. pursuant to KRS 421.355." powers. Whereas, prior to the new Judicial Article enacted in 1975, the line between judicial and Because S.D. (the son) was called as a witness legislative power was not clearly defined, such is and testified, the Commonwealth argues "that the no longer the case. The Kentucky Constitution, out-of-court statements of S.D. Sections 115 and 116, establish the judicial rule- were [**10] properly admitted at trial pursuant to making power. Section 116 specifies inter alia, that KRS 421.355 and Jett v. Commonwealth, Ky., 436 the Supreme Court shall prescribe the "rules of S.W.2d 788 (1969)." KRS 421.355 is practice and procedure for the Court of Justice." As unconstitutional, and as to Jett, there are two in Gaines, we will not extend comity to this statute further problems. The first is that because the case because it fails the test of a "statutorily acceptable" was tried pursuant to KRS 421.355 and not under substitute for current judicially mandated Jett, the prosecutor failed to lay the precise procedures. Fundamental guarantees to the foundation for the use of a witness' prior criminally accused of due process and contradictory statement as required under CR confrontation, established by both the United 43.08. This rule requires that a party offering a States and Kentucky Constitutions, are prior inconsistent statement must lay a foundation, transgressed by a statute purporting to permit first by inquiring of the witness as to particulars of conviction based on hearsay where no traditionally time, place and circumstance, and then by acceptable and applicable reasons for exceptions confronting the witness with the substance of the apply. The reasons for exceptions to the hearsay statement allegedly contradictory to his present rule are grounded not just on need, but on testimony. In Norton v. Commonwealth, Ky., 471 guarantees of trustworthiness which are the S.W.2d 302, 306 (1971), we stated "the rule of Jett substantial equivalent [**9] [*383] of cross- may not be applied without compliance with its examination. The statute presently under plainly stated prerequisites." In Fisher v. consideration fails to meet such essential Duckworth, Ky., 738 S.W.2d 810, 813 (1987), we requirements. As stated in Commonwealth v. were faced with a similar problem and stated "we Willis, Ky.. 716 S.W.2d 224, 233 (1986), Leibson, have no rule of evidence that permits one to make J., concurring; a goulash, jumbling evidence from different rules, and thus to qualify evidence as admissible which "It is important to protect the sensibilities of a would not otherwise qualify." child, but it is more important to protect the accused's right to properly defend himself Next. [**11] there seems little doubt, once the within the law as guaranteed by the Commonwealth concedes that the evidence Constitution. No person should be convicted of regarding the hearsay statements made by A.D. a felony and sent off to prison when he has not was inadmissible, that the use of such evidence so been able to defend himself as guaranteed by seriously prejudiced the case involving the the Constitution of the United States and the offenses charged as to S.D. that the trial on these Constitution of the Commonwealth of charges was fundamentally unfair, and a retrial is Kentucky." required.

In Bruce Drumm's case, the Brief for the We note that while on the one hand, as to Bruce Commonwealth concedes "that the hearsay Drumm, the Commonwealth "agrees" that the case statements of A.D. (the daughter) could not be should be reversed as to the offense against the admitted under any of the generally accepted daughter, it makes no similar concession in the exceptions to the rule prohibiting the admission of case against Karen Drumm. which proceeded on hearsay testimony .... that A.D. was not the same evidence. We conclude that, having 'available' as a witness and that the various social conceded error as to Bruce Drumm. consistency workers and doctors should not have been allowed would require a finding of the same error as to Karen Drumm. Drumm v. Commonwealth

What evidence of the children's out-of-court limit the use of this exception to statements made statements will be admissible on a retrial? Use of to a treating physician. Lawson, supra. Sec. 8.45. Jett is premised upon the witness, S.D., continuing In the present case, particularly with reference to to deny his previous statements, as he did at the Dr. Tucker who saw these children initially on first trial. However, there are two further bases for reference from Social Services both to investigate the use of previous out-of-court statements which for prosecutorial purposes and to diagnose and were argued upon this appeal, which apply not just treat their emotional problem, and who thereafter to S.D. but to both children, and which must be had such children in his care for the better part of considered by the trial court in the event of a three years, it is difficult to differentiate which retrial. These questions involve [**12] what statements properly qualify as statements to a evidence was admissible under statements to a treating physician and which do not. He was partly physician for the purpose of diagnoses or involved in treating the children and sometimes treatment, and what evidence from the records also wearing his "detective hat." from the Home of the Innocents was admissible under the exception to the hearsay rule for regular The time has come to expand the hearsay entries in the course of business. Having held KRS exception for [**14] statements for purposes of 421.355 unconstitutional, these two evidentiary medical diagnosis or treatment to conform to the questions will be important in the event of a retrial. modern approach as represented by Rule 803(4) of the Federal Rules of Evidence. Fed.R.Evid. The first issue involves out-of-court statements 803(4) blurs the distinction between treating and made by A.D. and S.D. to Drs. Richard K. Johnson testifying physicians while it does not completely and Edward Burla, clinical psychologists, and Dr. abolish it. The Federal Rules shift the emphasis in Daniel M. Tucker, psychiatrist. The question is expert testimony to a different ground, viz., which out-of-court statements by the whether the statement is "the kind of information children [*384] to these doctors incriminating the which the expert customarily relies upon in the defendants are admissible under the exception to practice of his profession." Buckler v. the hearsay rule for "statements made to a Commonwealth, Ky., 541 S.W.2d 935, 939 (1976), physician by a patient relating to matters which are on a slightly different subject, recognizes this shift necessarily important for him to know in order that in emphasis. he may make a correct diagnosis and render proper and effective treatment." Equitable Life Ins. Fed.R.Evid. 803(4) includes in the list of hearsay Soc’y V. Fannin, 245 Ky. 474, 53 S.W.2d 703, 706 statements admissible "even though the declarant (1932). More recently, in Souder v. is available as a witness": Commonwealth, Ky., 719 S.W.2d 730 (1986), "Statements made for purposes of medical referring specifically to "the admissibility of diagnosis or treatment and describing medical testimony from two physicians who participated in history, or past or present symptoms, pain, or the medical [**13] examination and investigation sensations, or the inception or general of the abused child," we stated; character of the cause or external source thereof insofar as reasonably pertinent to 'This exception is premised upon the diagnosis or treatment." admissibility of information . . . 'important to an effective diagnosis or treatment.' (Citation We now adopt Fed.R.Evid. 803(4) for this and omitted]. This does not include information future cases. provided as part of a criminal investigation, nor In applying this rule to children allegedly victims of does it usually include information identifying sexual offenses. Federal courts have the name of the wrongdoer because normally generally [**15] followed a liberal approach. See the name of the wrongdoer is not essential to United States v. Iron Shell, 633 F.2d 77 (8th Cir. treatment." Id. at 735. 1980), cert, den., 450 U.S. 1001, 101 S. Ct. 1709, The problem is that heretofore our Kentucky cases 68 L. Ed. 2d 203 (1981); United States v. Renville, Drumm v. Commonwealth

779 F.2d 430 (8th Cir. 1985); and more recently. under the traditional common-law [**17] standard Morgan v. Foretich, 846 F.2d 941 (4th Cir. 1988), underlying the physician treatment rule." 846 F.2d The Concurring Opinion by former Associate at 952. Justice Powell would resolve the question Justice Lewis Powell. U.S. Supreme Court retired, of admissibility by ordering the trial court to in Morgan v. Foretich, is a particularly incisive exercise its "discretion" to decide whether the analysis of the proper application of Fed.R.Evid. evidence should be "excluded ... on the ground its 803(4) to a case where the charge is sexual abuse prejudicial effect outweighs its probative value. See of a child of tender years, as in the present case. Fed.R.Evid. 403." He states; Powell states; "Rather than conclude, however, that Dr. Harrison's testimony should have been "Rule 803(4) appears to have abolished the admitted into evidence, I would leave this common-law distinction between those question for reconsideration at the trial of this statements made while consulting a 'physician' case, if there should be a retrial." for purposes of examination and statements made while consulting him for purposes of in the event of a retrial in the present case, we testifying as a witness .... So long as the direct the trial court to decide the hearsay question statements made by an individual were relied regarding each of the various out-of-court on by the physician in formulating his opinion, statements by the children to the psychiatrist and they are admissible. [Citations omitted]. the. psychologist by making a judgment as to Although this holding ignores the traditional whether "prejudicial effect outweighs . . . probative common-law prong of the rule that requires value," taking into account that when such that the statements be made for [*385] the statements are not made for the purpose of purposes of seeking treatment, it has clear treatment they have "less inherent reliability than support in the Advisory [**16] Committee evidence admitted under the traditional common- notes to Rule 803(4)." law standard underlying the physician treatment rule." This approach eliminates problems in applying the rules caused by the "treating physician" restriction, In each instance the trial court must also decide, in problems as to which interviews are treatment and addition to the hearsay question, the relevancy which are not, problems as to whether the child is question. [**18] This means only the statements too young to realize she is receiving treatment, and that would qualify as relevant to an issue in the problems as to the child's present testimonial case if the declarant were testifying as a witness at incompetence. Our approach in Miller v. Watts, the trial are admissible in any event. Collateral Ky., 436 S.W.2d 515, 521 (1969), already covers criminal activity is not admissible, subject to well this in part because it permits evidence of "history recognized exceptions bearing specifically on related to a treating doctor by a parent, custodian, some issue in the case. guardian of an infant offender years." Next, we turn to the business records of the Home Under the approach taken by Justice Powell in of the Innocents. These were admitted into Morgan v. Foretich, supra, the child's age or evidence without objection except as to those testimonial incompetency is not an insurmountable portions which expressed the opinions and problem, nor need we decide whether these out-of- conclusions of social workers. Those objections court statements were made exclusively for should have been sustained. As stated in Cabinet purposes of treatment. But this does not eliminate for Human Resources v. E.S. and H.S., Ky., 730 such factors from the trial court's consideration. S.V\/.2d 929 (1987), entries in the case record Particularly with reference to the "treating made by social workers which constituted physician" requirement. Justice Powell takes note statements of factual observations are admissible that statements made to a doctor who is consulted under the business entry exception to the hearsay solely "for purposes of testifying as a witness," rule, but those statements expressing opinions and "has less inherent reliability than evidence admitted conclusions are not. Also, as stated in CHR v. E.S. Drumm v. Commonwealth

and H.S., there is a "special problem underlying Dissent the admissibility of [the social workers'] opinion and conclusions"; such do not qualify as "expert testimony." Thus, as in CHR v. E.S. and H.S., DISSENTING OPINION BY JUSTICE VANCE there was trial error in the admissibility of these entries "in [**19] toto." In the event of a retrial, the I dissent from that portion of the majority opinion trial court must distinguish between factual which adopts Fed. R. Evid. 803(4). When, as here, observations, which may include the children's out- we adopt a federal rule of procedure, we must of-court statements depending on the recognize that the rule is not limited in application circumstances, and the opinions and conclusions to the facts of this case. It may have wide-ranging of the social workers, ruling out the latter. applications to other factual situations not now before us and to which we have given no The appellant, Bruce Drumm, further complains consideration at all. The question of the adoption of that he was tried in violation of his right to a speedy this federal rule has not been briefed. We have not trial. The record shows that the delays occasioned heard argument on the question, and the adoption after he asserted such right were substantially of of a new rule of evidence in this manner flies his own making. squarely in the face of our announced policy submitting the proposed adoption of rules to a The appellant, Bruce Drumm, further complains that he was prejudiced because he was denied a discussion by the members of the Kentucky Bar trial separate from his [*386] wife, charging that Association before they are adopted. We have just evidence otherwise inadmissible relating to the completed a two-year process concerning the "lifestyle" of Karen and Bruce Drumm was proposed adoption [**21] of Kentucky Civil Rules introduced at his wife's behest to show that she of Evidence. I was a victim rather than a principal in their sexual Contrary to our established policy, the majority has aberrations. The simple answer to this is that no adopted a new criminal rule of evidence without evidence of unrelated sexual activity should have any discussion or attempt to discover what been admitted, or should be admitted at a next ramifications may lie hidden in its adoption. trial, unless such evidence qualifies under Ostensibly, it is adopted to pave the way for the recognized principles of relevancy. This means no admission into evidence of out-of-court statements evidence should be admitted against Bruce Drumm of young children and infants made to a physician at a joint trial which would not be admissible at his who was consulted for the purpose of giving separate trial. testimony at trial. The rule would apparently utilize The remaining issues raised [**20] by the admission of out-of-court statements insofar as appellants need not be addressed because they they are pertinent to diagnosis and treatment, should not reoccur. whether or not they are made for the purpose of diagnosis and treatment. Heretofore, such out-of- In both cases convictions on all charges are court statements have been admitted only when reversed, and the case is remanded to the trial made to a treating physician, not one employed to court for further consideration in conformity with testify. There is a good reason for this limitation. this Opinion. A statement to a treating physician to make a Gant, Lambert, Leibson and Wintersheimer, JJ., diagnosis and to give proper treatment by a person concur. who wants to get well and knows that his recovery may well depend on his telling the truth to his Vance, J., dissents by separate opinion in which doctor, has an inherent indication of reliability. It is Stephens, C.J. and Combs, J., join. so likely that one would tell the truth under such circumstances that the statement is sufficiently Dissent by: VANCE trustworthy to [**22] be admitted into evidence. Drumm v. Commonwealth

The same is not true, however, when the physician wears the hat of a paid investigator who has been End of Document consulted to testify at trial. The statements made to him are not made under any urgency to tell the truth because the likelihood of recovery of one's health does not depend upon it. There may be cases where the out-of-court statements to the physician employed to testify were precipitated by the basest of motives, including a possible motive of an adult to coach an infant to make statements designed to secure the conviction of a particular accused person.

The adoption of this rule may also have implications for the future in several cases relating to statements made by an unavailable witness to a physician consulted for the purpose of testifying at trial. The purpose of such declarant might not be to insure the recovery of his health, but rather to insure the recovery of a judgment.

I think, also, that we should be particularly cautious about admitting into evidence the out-of-court statements to a physician of any child who is not competent to testify in person because a child whose [*387] understanding is not sufficient to allow him to testify might well also [**23] fail to understand that the recovery of his health is dependent upon the truth of his statements to the doctor.

The reason we exclude hearsay testimony in any case is that the declarant is not subject to cross- examination and that there is no sufficient guarantee of the trustworthiness of the out-of-court statement. That is the difficulty here. There is no way to determine the trustworthiness of the out-of- court statements of a child whose lack of understanding renders him incompetent to testify. If the out-of-court statements are not allowed in evidence, a child molester may go free. If they are allowed into evidence, an entirely innocent person may be imprisoned.

Our failure to explore the potential consequences of this ruling should preclude its adoption in such a cavalier fashion.

Stephens, C.J.. and Combs, J., join in this dissent. jiSi Caution As of; February 21, 2018 8;32 PM Z

Gaines v. Commonwealth

Supreme Court of Kentucky March 12. 1987, Decided No. 86-SC-39-MR

Reporter 728 S.W.2d 525 *; 1987 Ky. LEXIS 196 ** witness was an unconstitutional infringement on the Paul Gaines, Appellant v. Commonwealth of Kentucky, inherent powers of the judiciary, as declared in Ky. Appellee Const. $6 27, 28. The court further held that this statute was a legislative interference with the orderly Subsequent History: [**1] Petition for Rehearing administration of justice. Denied May 21,1987.

Outcome Prior History: Appeal from Campbell Circuit Court, The court reversed the judgments of the trial court that Honorable George T. Muehlenkamp, Judge, 85-CR-122. convicted defendant for first-degree sodomy and first- Disposition: Reversing. degree sexual abuse with directions to grant a new trial.

Case Summary Counsel: Rodney McDaniel, for appellant. David L. Armstrong, Attorney General and Elizabeth Marshall. Asst. Attorney General, for appellee. Procedural Posture Defendant appealed from a decision of the Campbell Judges; Stephens, C.J., and Gant, Lambert, Leibson, Circuit Court (Kentucky) convicting him for first-degree and Stephenson, JJ., concur. Vance, J., dissents. sodomy and sentencing him to 20 years imprisonment. Wintersheimer, J., dissents and files a separate He was also challenged his conviction for first-degree dissenting opinion. sexual abuse and sentence to five years imprisonment. Opinion by: STEPHENSON Overview Opinion Defendant was convicted of first-degree sodomy and first-degree sexual abuse. The prosecution presented the testimony of a child-abuse worker and an employee [*525] Paul Gaines was convicted of first-degree of the county Department of Juvenile Services, who sodomy and sentenced to twenty years' imprisonment. described their interview with the child. During a He was also convicted of first-degree sexual abuse and videotaped interview with anatomically correct dolls, the sentenced to five years' imprisonment. We reverse. child demonstrated and told what happened with defendant, her father. The commonwealth then The child involved here was four years of age. The concluded the trial with the playing of the videotape prosecution presented the testimony of a child-abuse interview. There was not any physical or medical worker and an employee of the county Department of evidence of the complained-of acts. The videotape was Juvenile Services, who described their interview with the admitted into evidence before the jury pursuant to Ky. child; and the videotaped interview with anatomically Rev, Stat. Ann. $ 421.350(2), and characterized by correct dolls where the child demonstrated and told defendant as an unsworn out-of-court statement. On what happened with Gaines, her father. The appeal, the court reversed the trial court judgment with Commonwealth then concluded with the playing of a directions to grant a new trial. The court held that the videotape of the interview with the other two witnesses. statute permitting testimony from a child who had not There was not any physical [“2] or medical evidence of been declared by the trial court competent to testify as a the complained-of acts. The father testified, denying 728 S.W.2d 525, *525; 1987 Ky. LEXIS 196, “2

committing any of the acts. child is competent to testify, it is within the discretion of the court whether it is appropriate, in addition, to [*526] This videotape was admitted into evidence administer a formal oath. before the jury pursuant to KRS 421.350(2), which provides; From our review of [**4] cases in this jurisdiction (2) The recording of an oral statement of the child relating to the competency of children to testify as made before the proceeding begins is admissible witnesses, there is a common thread that the trial court into evidence if: should test the child to determine if the child is (a) No attorney for either party was present when sufficiently intelligent to observe, recollect, and narrate the statement was made; the facts and has a moral obligation to speak the truth. (b) The recording is both visual and oral and is These cases are compiled in 22 Ky. Digest 2d, recorded on film or videotape or by other electronic Witnesses, Keys 40(1), 40(2), and 45(2). It is apparent means; that there has not been an issue raised in the cases as (c) The recording equipment was capable of to whether a formal oath should be administered to the making an accurate recording, the operator of the child after the trial court has determined the child is equipment was competent, and the recording is competent to testify. It is apparent that this has been left accurate and has not been altered; to the good judgment of the trial court to decide whether (d) The statement was not made in response to a solemn obligation to tell the truth is to be reinforced questioning calculated to lead the child to make a with a formal oath in the case of very young children. In particular statement; any event, after a child has been found competent to (e) Every voice on the recording is identified; testify, the child becomes a witness the same as any (f) The person conducting the interview of the child other witness who has taken an oath or affirmed. in the recording is present at the proceeding and available to testify or be cross-examined by either The proposition that a witness in a court of law must party; take a solemn obligation to tell the truth is as old as our (g) The defendant or the attorney for the defendant jurisprudence. In this jurisdiction, for example, we have is afforded an opportunity to view the recording said in Whitaker v. Commonwealth. 297 Ky. 279. 179 before it is offered into evidence; and S.W.2d 448, ['*51 451 (1944). involving a five-year-old boy, that a child having sufficient natural intelligence (h) The child is available [**3] to testify. If the and being so instructed as to comprehend the nature of electronic recording of the oral statement of a child the act of telling the truth and consequence of willful is admitted into evidence under this section, either falsehood must be permitted to testify. party may call the child to testify, and the opposing party may cross-examine the child. Also, in Jackson v. Commonwealth, 301 Ky. 562. 192 S.W.2d 480, 481-2 (1946). we said that whether a child This videotape is characterized by Gaines as an is old enough to testify is not measurable by any unsworn out-of-court statement. The videotaped unalterable rule as to age, but the court should make interview is described by the Commonwealth as a inquiry into the child’s qualifications, [*527] and "statutorily acceptable admission of an unsworn out-of- determine whether he is sufficiently intelligent to court statement." observe, recollect, and narrate the facts, and has a sense of obligation to speak the truth, and, if so, should Gaines unsuccessfully moved to suppress the permit the child to testify, leaving the question of weight videotape. We are of the opinion that the trial court to be given his testimony for the jury. erred when it admitted the tape into evidence. There are other issues preserved by Gaines, but in view of our That these propositions rest on historical foundations as holding on the tape, we will not discuss these issues. ancient as our law is found in Blackstone, Commentaries on the Laws of England, Blackstone, It is fundamental to our system of jurisprudence that a Sharswood (1878), Vol. II, Book III, Chapter 23, Private witness in a case not be permitted to testify unless the Wrongs, page 369: proffered witness shall first undertake a solemn obligation to tell the truth. This ordinarily will be by oath . . . This compulsory process, to bring in unwilling or affirmation (KRS 454.170}. In the case of very young witnesses, and the additional terrors of an children, after a determination by the trial court that the attachment in case of disobedience, are of

Page 2 of 5 728 S.W.2d 525, ‘527; 1987 Ky. LEXIS 196, “5

excellent use in the thorough investigation [**6] of Constitution of Kentucky, truth; and, upon the same principle, in the Athenian courts, the witnesses who were summoned to Ky. Const. 27 provides: attend the trial had the choice of three things: either to swear to the truth of the fact in question, to deny The powers of the government [**8] of the or abjure it, or else to pay a fine of a thousand Commonwealth of Kentucky shall be divided into drachmas. three distinct departments, and each of them be and, on page 371: confined to a separate body of magistracy, to wit: The oath administered to the witness is not only Those which are legislative, to one; those which are that what he deposes shall be true, but that he shall executive, to another; and those which are judicial, also depose the whole truth; so that he is not to to another. conceal any part of what he knows, whether interrogated particularly to that point or not. And all Ky. Const. 28 provides: this evidence is to be given in open court, in the No person or collection of persons, being of one of presence of the parties, their attorneys, the those departments, shall exercise any power properly belonging to either of the others, except in counsel, and all bystanders, and before the judge and jury; .... the instances hereinafter expressly directed or permitted. This illustrates the concept that before being a witness in a court of law there must be demonstrated a solemn We are of the further opinion that this statute, obligation to tell the truth. This has been applied to authorizing a child to be a witness without first having children proffered as witnesses; for example, see The undertaken a solemn obligation to tell the truth, is a King v. Brasier, 1 Leach 199, 168 Eng. Rep. 202(1779) legislative interference with the orderly administration of (12J): justice.

The Judges assembled at Serjeants'-Inn Hall 29 The Commonwealth's assertion that the videotape is a April 1779, were unanimously of opinion. That no statutorily acceptable admission of an unsworn out-of- testimony whatever can be legally received except court statement [*528] presents the issue which we upon oath; and that an infant, though under [“7] have decided impinges upon the authority of the the age of seven years, may be sworn in a criminal judiciary to conduct an orderly system of justice; thus prosecution, provided such infant appears, on strict the admission of the videotape into evidence was error. examination by the Court, to possess a sufficient See also 81 Am Jur 2d, Witnesses. 1, 69, 86, 88, 89, knowledge of the nature and consequences of an 92, 93, and 413, which essentially state that a witness is oath (see White's case, post, 430, Old Bailey a person whose [”9] statements under oath are October Session, 1786), for there is no precise or received as evidence for some purpose - that a young fixed rule as to the time within which infants are child offered as a witness must possess a sense of excluded from giving evidence; but their obligation to tell the truth, and the competency of a child admissibility depends upon the sense and reason is determined by the trial court after investigating the they entertain of the danger and impiety of child's capacity to observe and remember the matters falsehood, which is to be collected from their about which testimony is sought. answers to questions propounded to them by the The Commonwealth speaks of exceptions to the Court; but if they are found incompetent to take an hearsay rule and cites McClure y. Commonwealth, Ky, oath, their testimony cannot be received. The App., 686 S.W.2d 469 (’1985), as authority. There, Judges determined, therefore, that the evidence of hearsay statements of a child were held to be within the the information which the infant had given to her res gestae rule. We point out that the witness who mother and the other witness, ought not to have testified to these statements was undoubtedly sworn or been received. affirmed to speak the truth. This line of reasoning by the We are of the opinion the statute which permits Commonwealth is not in point with the issue. testimony from a child who has not been declared by Further, that the child was available for cross- the trial court competent to testify as a witness is an examination does not cure the fatal flaw in permitting unconstitutional infringement on the inherent powers of the child to testify without having the trial court first the judiciary, as declared in Sections 27 and 28 of the determine that the child was competent to be a witness.

Page 3 of 5 728 S.W.2d 525, *528; 1987 Ky. LEXIS 196, *‘9

In view of our holding, we do not consider the other available in court but was not called as a witness. The assignments of error. defense did not call her either. Gaines testified in his own defense and denied committing any of the alleged The judgment of the trial court is reversed with offenses. The jury found him guilty of both charges. directions to grant a new trial. The statutory plan of KRS 421.350(21 provides ample Stephens, C.J., and Gant, Lambert, Leibson, and opportunity to test the credibility of the evidence and the Stephenson, JJ., concur. evidence was sufficient for the jury to find guilt in this case. The videotaped interview of the victim is a [**10] Vance, J., dissents. statutorily acceptable admission of an unsworn, out-of- Wintersheimer, J., dissents and files a separate court statement and as such is a recognized exception dissenting opinion. to the hearsay rule. The evidence presented is comparable to any other case in which the victim gives Dissent by: WINTERSHEIMER an eyewitness account of the crime. Here the child victim is an eye witness to the alleged crime and Dissent the [**12] statement was [*529] taken out of court by means of video tape. The victim was available at trial and physically present for full and complete examination. The defendant did not choose to exercise DISSENTING OPINION BY JUSTICE this right. The trial judge correctly overruled the motion WINTERSHEIMER for directed verdict. There was sufficient credibility in the statements of the victim to create a jury question I respectfully dissent because I believe the statute is between the opposing testimony of the victim and her constitutional. I would interpret the law so as to provide father who totally denied the offenses. that competency of the child witness be judicially determined before the evidence in question could be The interview with the victim was conducted under admitted. circumstances which enhanced the believability of her statement. The videotaped interview was conducted at 4 In 1978 this Court adopted the federal definition of p.m. on May 3, 1985, only five hours after the initial "unavailability" of a declarant for the purpose of interview at 11 a.m. the same day. There was no excepting from the hearsay rule declarations against evidence of any contact in the interim by the social interest. Crawley v. Commonwealth, Ky,, 568 S.W. 2d workers so as to permit any influencing or rehearsing of 927 (1978): See also Motorists Mutual Insurance Co. v. the taped statement. Hunt, Ky. App., 549 S.W. 2d 845 (1977). Gaines waived his right to cross-examine the victim. The statute requires the child to be competent to stand KRS 421.350(2)(h) provides the right to cross-examine for cross-examination. KRS 421.350(2) makes clear that by requiring that the child victim be available to testify the inability to cross-examine the child, because of upon the call of either party. The child victim was unavailability renders the videotaped statement physically present and available to be sworn and called inadmissible. Therefore, the statute not only envisions as a witness. Gaines did not choose to call her for but necessitates a judicial determination of the child's cross-examination [**13] and consequently waived his competency before admission of the videotaped right to claim on appeal that confrontation was denied. statement into evidence. There is no encroachment into the judiciary’s function of insuring the orderly I am persuaded that Jolly v. State. Tex. App. 681 S.W. administration [**11] of justice nor a violation of the 2d 689. 695 (1984), is correct when it held that a doctrine of separation of powers. I believe the law is not defendant could not claim on appeal that he was denied constitutionally infirm. the right to confront and cross-examine a child victim when the defendant had chosen not to call the child to The prosecution case was principally the unsworn, out- testify at trial even though she was available. See Also of-court statement made by the four-year-old victim. Alexander v. State. Tex. App.. 692 S.W. 2d 563 (1985). There was no physical or medical evidence. Two social The Texas statute is very similar to KRS 421.350. workers testified relative to the taking of the statement. Additional support for the valid constitutional foundation The prosecution concluded the case by the playing of for the statutory plan may be found in Eastman v. the videotaped statement. The victim was present and

Page 4 of 5 728 S.W.2d 525, *529; 1987 Ky. LEXIS 196, **13

Commonwealth. Ky. Add., 720 S.W. 2d 348 (1986}: "The Testimony of Child Victims in Sex Abuse Prosecutions: Two Legislative Innovations", 98 Harvard Law Review 806 (1985): and "The Competency Requirement for the Child Victim of Sexual Abuse: Must We Abandon It?" Comment, 40 U. of Miami Law Review 245(1985).

b nd of OocuHichi

Page 5 of 5 632 Ky. 963 SOUTH WESTERN REPORTER, 2d SERIES

taken, discretionary review would not have eral Savings Bank, Ky., 942 S.W2d 904 been granted, and this Court would not have (1997). Tile House, Inc. does not apply be­ considered the matter and rendered an opin­ cause the instrument in question was never ion. A great deal of legal and judicial time signed in conformity with the requirements could have been saved if the law and well- of the Statute of Frauds. established Kentucky practice had been fol­ lowed originally. The trial judge was not clearly erroneous when he found that the mortgage document I respectfully dissent from ihe majority did not contain a signature at the end. Was opinion because the mortgage in question not acknowledged or proved and contained had not been sighed at the end prior to being no source of title. Consequently, he deter­ filed for recording. The Court of Appeals mined that there was no actual notice based was correct when it determined that First on the record before him. National did not have actual notice of the mortgage in controversy. It would appear that this case could have The mortgage would be enforceable as an easily been resolved through the exercise of equitable mortgage but only between the professional diligence in obtaining a signa­ parties to the document and, thus, would ture at the end of the document, properly have no effect on First National. The Court acknowledged, with a source of title. of Appeals correctly determined that in order 1 would affirm the Court of Appeals and to be enforceable, the first mortgage would the circuit court. have to be signed by the party to be charged with it pursuant to ihe Statute of Frauds, KRS 371.010. Any document which requires LAMBERT, J., joins in this dissent. a signature is to be signed at the end of the writing. KRS 446.060. KRS 382.270 re­ quires that a mortgage be acknowledged or proved and recorded in the proper office, which is generally considered to be the office of the county clerk. The signature at the end of Schedule C in this case was not suffi­ cient to validate the mortgage. It has been held that a mortgage which James Arthur DANNER, Appellant, has not been acknowledged nor proved is not recordable and is not valid nor does it give V. notice to subsequent creditors. Starr Piano COMMONWEALTH of Kentucky, Co. V. Petrey, 168 Ky. 530, 182 S.W. 624 Appellee. (1916). The trial court found that there was no valid evidence that First National had No, 96-SC-1136-MR. actual notice of the existence of a valid first mortgage. Supreme Court of Kentucky. In addition, it has been previously held Feb. 19, 1998. that an equitable mortgage cannot relate back to the date of an attempted legal mort­ gage and can be enforced only as of the date Defendant was convicted in the Boyd of a court adjudication that it was an equita­ Circuit Court, C. David Hagerman, J., of two ble mortgage. Borg-Wamer Acceptance counts of first-degree sodomy, and one count Corp. V. First National Bank of Prestons- of first-degree rape, and he appealed. The Irurg, KyJ^p., 577 S.W.2d 29 (1979). Cer­ Supreme Court, Lambert, J., held that court tainly, in certain circumstances, an equitable properly allowed child victim, who was defen­ lien can take priority over a subsequent valid dant’s daughter, to testily in camera. and recorded mortgage acquired by actual notice. Tile House, Inc. v. Cumberland Fed­ Affirmed. DANNER V. COM. Ky. 633 Cite as, Ky., 963 S.W-2d 632 1. Witnesses ©=>228 LAMBERT, Justice. Statute allowing alleged victims of illegal Appellant, James Arthur Danner, was con­ sexual activity who are 12 years of age or victed in the Boyd Circuit Court of two younger to testily through closed circuit tele­ counts of sodomy in the first degree, and one vision or taped video was intended to protect count of rape in the first degree. He was child victims 12 and under when crimes were sentenced to twenty-four years imprisonment committed against them and who remain on each count to run concurrently for a total children at time of trial. KRS 421.350. of twenty-four years imprisonment He ap­ peals as a matter of right. 2. Witnesses <^228 The victim of appellant’s sex crimes was In deciding whether to allow child victim his daughter. She was between the ages of of illegal sexual activity to testify through five and ten years old when appellant sexual­ closed circuit television or taped video, trial ly abused her, but she was fifteen by the court must have wide discretion to consider time appellant was brought to trial. Because age and demeanor of victim, nature of of­ the Commonwealth felt that the victim could fense, and likely impact of testimony in court not testify in the presence of appellant, it or facing defendant. KRS 421.360(2,3). sought to have her testimony taken outside appellant’s presence pursuant to KRS 3. Witnesses ®=228 421.350. The Commonwealth moved for an When making compelling need determi­ in camera interview with the victim so that nation of whether child victim of illegal sexu­ the court could determine whether there was al activity should be allowed to testify “compelling need” for the victim to testify through closed circuit television or taped vid­ through closed circuit television or taped vid­ eo, court should consider, especially in case eo recording pursuant to that statute. Ap­ where child is older than 12, age of victim, pellant objected, arguing that the fifteen year and time which has elapsed from crime to old victim was too old under the statute to be date of trial. KRS 421.350(2,3). allowed to testify outside the courtroom, and even if not, that the Commonwealth had 4. Criminal Law ®=661,1153(1) failed to establish the required compelling Presentation of evidence is within sound need for her testimony to be taken in that discretion of trial judge, and will not be manner. disturbed absent abuse of discretion. The trial court granted the Common­ wealth’s motion and interviewed the victim in 5. Witnesses ®=»228 camera. After the interview, the trial court Allowing 15-year-old victim, who was determined that compelling need was shown defendant’s daughter and was between five and allowed the victim to testify through and ten years old at time of alleged offenses, closed circuit television. to testify through closed circuit television was not abuse of discretion in prosecution for I. THE AGE PROVISION OF THE sodomy; court found that due to nature of STATUTE testimony and age of victim that face-to-face arrangement would inhibit victim to a degree [1] The first issue is whether the age that jury’s search for truth would be clouded. provisions of KRS 421.360 refer to the age of KRS 421.360. the victim when the crime was committed or when the testimony is given. See generally, Commonwealth v. Willie, Ky., 716 S.W.2d 224 (1986). KRS 421.350(1) defines the class Michael J. Curtis, Ashland, for Appellant. of persons allowed to testify outside the pres­ A.B. Chandler III, Attorney General, Dina ence of the accused: Abby Jones, Assistant Attorney General, 421.350 Testimony of child allegedly vic­ Frankfort, for Appellee. tim of illegal sexual activity 634 Ky. 963 SOUTH WESTERN REPORTER, 2d SERIES

(1) This section applies only to a proceed­ ing the protections of the statute to a child ing in the prosecution of an offense, includ­ who was twelve when the sex crimes were ing but not limited to an offense under committed, but who had turned thirteen be­ KRS 510.040 to 510.150, 529.030 to 529.050, fore the trial of the accused. Such a result 529.070, 530.020, 530.060, 530.064, 531.310. would be contrary to the broad protective 531.320, 531.370, and all dependency pro­ purpose underlying the statute.^ ceedings pursuant to ERS Chapter 620, when the act is alleged to have been com­ II. THE TRIAL COURT’S FINDING mitted against a child twelve (12) years of OF COMPELLING NEED age or younger, and applies to the state­ [2,3] The trial court’s inquiry does not ments or testimony of that child or another end with an age determination. Rather, the child who is twelve(12) years of age or court must also find compelling need for such younger who witnesses one of the offenses procedures, as required by KRS included in this subsection. 421.350(2),(3) before the child victim will be The Commonwealth and appellant disagree allowed to testify as per the statute. This on when the age determination is to be made. Court has enumerated certain factors a trial The Commonwealth focuses on the age of the court should consider in making a compelling victim at the time the crime was committed, need determination: “the trial court must and contends that since the victim in this have wide discretion to consider the age and case was under twelve when the crimes were demeanor of the child witness, the nature of committed against her, she should be allowed the offense and the likely impact of testimo­ benefit of the statute. Appellant focuses on ny in court or facing the defendant.” Contr the age of the victim at the time of the trial, monweaUh v. WiUis, Ky., 716 S.W2d 224, and counters that a victim who is older than 230 (1986) (emphasis added). Other factors a twelve at the time of trial can not so testily. trial court should consider when making a compelling need determination, especially in As applied to the facts of this case, the a case where the child is older than twelve, statute must be regarded as ambiguous. are the age of the victim, and the time which One portion clearly refers to the age of the has elapsed from the crime to the date of victim when the act is committed, but anoth­ trial. er portion refers to the age of the victim when the testimony is given. The statute [4] The trial court has broad discretion in assumes the age will be the same, but in fact, this area. The “presentation of evidence” is it often will not. Despite the ambiguity as within the sound discretion of the trial judge, here applied, we believe legislative intent is and will not be disturbed absent abuse of to protect child victims twelve and under discretion. Moore v. Commonwealth, Ky., when the crimes were committed against 771 S.W.2d 34, 38 (1989), cert den., Moore v. them and who remain children * at the time Kentucky, 494 U.S. 1060, 110 S.Ct 1536,108 of trial. The statute does not preclude this L.Ed2d 774 (1990). Abuse of discretion interpretation and its language focuses on could be found where a child was allowed to the age of the child when the crime was testify outside the presence of the accused committed: “[tjhis section applies ... when provided “the prosecution [was] unable to the act is alleged to have been committed show any necessity for the use of the stat­ against a child twelve years of age or youn­ ute,” Willis, supra at 229-230. ger ...” KRS421.35(X1). To hold otherwise [5] In the case at bar, the trial court would permit the untoward result of disallow- interviewed the child victim in camera, and

1. Although "child" is not defined for the pur­ 380, 96 S.W.2d 1049 (1936); Peters v. Common­ poses of KRS Chapter 421, "child" has been wealth, Ky., 477 S.W.2d 154 (1972); Common­ defined in other KRS sections as a person who wealth V. Willis, Ky., 716 S.W.2d 224 (1986). has not yet reached her eighteen^ birthday. The statute itself was recently broadened so that KRS 15.900, KRS 199.011, and KRS 600.020. now, in addition to child victims, child witnesses 2. This statute is in line with the special treatment may also testify outside the presence of the ac­ Kentucky courts have long afforded child wit­ cused. 1996 Ky. Acts ch. 178, sec. 1, effective nesses. See Meredith v. Commonwealth, 265 Ky. July 15, 1996. REVENUE CABINET, COM. v. WYATT Ky. 635 cite as, KyJVpp., 963 S.WJid 635 then determined that compelling need justi­ fied the use of KRS 421.350 procedures. REVENUE CABINET, COMMON- The trial court considered the testimony the WEALTH OF KENTUCKY, child would give at trial, and the age of the Appellant, child in maldng its determination. The Court stated: “... the Court is convinced V. that due to the nature of the testimony and Michael L. WYATT and Mary the age of the witness that face-to-face ar­ Wyatt, Appellees. rangement would inhibit the witness to a degree that the jury’s search for the truth Nos. 96-CA-3171-MR, 96-CA-3475-MR. would be clouded.” The trial court was con­ vinced that the victim would not be able to Court of Appeals of Kentucky. testify in the presence of appellant, and in the interest of presenting all evidence to the Feb. 27, 1998. jury it made the determination of compelling need: the compelling need is not based on conve­ In proceeding to determine income tax nience or comfort level of the witness so liability, the Circuit Court, McCracken much as it is the need to be able to disclose County, R. Jeffrey Hines, J., determined the testimony so that the jury itself can that portions of corporation’s sale price at­ determine whether they want to accept or tributable to goodwill and a covenant not to reject same or what weight should be giv­ compete were exempt from taxation under en. Enterprise Zone Act Taxing authority ap­ This Court has similarly held that where the pealed. The Court of Appeals, Schroder, J., trial judge found that the child would not held that: (1) portion of sale price attribut­ testify as to the offense and was reluctant to able to goodwill was exempt from taxation; testify in

O S KEY NUMBER SYSTEM > tion, and, therefore, portion of corporation’s sale price attributable to covenant not to compete was not exempt from income taxa- O Cited As of; February 21, 2018 7:56 PM Z

J.E. V. Commonwealth

Court of Appeals of Kentucky April 28, 2017, Rendered NO. 2016-CA-OOQ116-ME

Reporter 521 S.W.3d 210 *; 2017 Ky. App. LEXIS 99 **; 2017 WL 1533786 Christopher S. Nordloh, Assistant Attorney General, J.E., A CHILD UNDER EIGHTEEN, APPELLANT v. Covington, Kentucky. COMMONWEALTH OF KENTUCKY, APPELLEE

Judges: BEFORE; CLAYTON, DIXON AND D. Subsequent History; Released for Publication July 14, LAMBERT, JUDGES. ALL CONCUR. 2017.

Opinion by: LAMBERT, D. Prior History: [**1] APPEAL FROM KENTON CIRCUIT COURT. HONORABLE GREGORY M. BARTLETT, JUDGE. ACTION NO. 15-XX-00008. Opinion

Case Summary [*211] AFFIRMING IN PART, REVERSING IN PART, Overview AND REMANDING HOLDINGS: [1]-A district court did not abuse its LAMBERT, D., JUDGE: This matter comes before this discretion in finding the child victim competent to offer Court for discretionary review of a decision by the testimony where the victim demonstrated an Kenton Circuit Court, sitting in appellate jurisdiction of a understanding of the difference between truthfulness decision by the Kenton District Court. The Appellant, and lying and the consequences of lying in a court J.E., a minor, seeks review of the Circuit Court's proceeding, and nothing in case law required an expert affirmation of the District Court's adjudication of his guilt evaluation to determine the competency of a child of the offense of Sodomy in the First Degree where the witness; [2]-The district court abused its discretion and victim was under the age of twelve years. violated the juvenile's right to confrontation in erecting screens to obstruct his views of the child witness during The Appellant (hereafter, J.E.), contends that the her testimony where there was no evidence of a Kenton District Court committed several reversible compelling need to modify the courtroom environment; errors. J.E. argues the trial court improperly found the [3]-The constitutional error was not harmless given the eight-year-old victim competent to testify. He also reasonable probability that the victim's testimony contends that the District Court [*212] violated the contributed to the conviction; [4]-The district court did Confrontation Clause of Sixth Amendment by placing not commit palpable error in allowing the grandmother screens [**2] between himself and victim during her to encourage the victim during testimony. testimony. He also asserts the District Court committed error in allowing the victim's grandmother to sit near her Outcome and hold her hand during testimony, though he failed to Rulings affirmed in part; conviction reversed. properly preserve this claim of error. J.E.'s final argument challenges the District Court's finding that the Counsel; BRIEF FOR APPELLANT AND AT ORAL evidence was sufficient to show guilt. Having reviewed ARGUMENTS: Kathleen K. Schmidt, Frankfort, the record, we affirm the District and Circuit Courts' Kentucky; Renee Sara Vanderwallbake, Frankfort, rulings as to the issues relating to the child victim's Kentucky. competency and the grandmother's alleged interference BRIEF FOR APPELLEE AND AT ORAL ARGUMENTS: in the victim's testimony. Andy Beshear, Attorney General of Kentucky; 521 S.W.3d 210, *212; 2017 Ky. App. LEXIS 99, “2

However, we also conclude that the screening difference between telling the truth and lying, but procedures implemented by the District Court violated refused to answer the District Court's questions about the Confrontation Clause contained in the Sixth the incident giving rise to the charges. The court stated Amendment of the U.S. Constitution. We further that there was a potential issue with the victim's ability to conclude that the trial court's ruling regarding the recall facts, but deferred ruling on her competency until sufficiency of the evidence, in light of our conclusion the date of the adjudication hearing. The court also regarding the confrontation issue, cannot stand. denied the defense's request to have a psychologist Consequently, we must reverse as it relates to those examine the victim and determine her [*213] two issues. competency. The District Court found the brother competent without issue.

I. FACTUAL AND PROCEDURAL HISTORY The District Court conducted a hearing on January 14, 2015, which related to confrontation issues. At the The Cabinet for Health and Family Services ("CHFS"), outset of this hearing. Commonwealth noted that the removed the victim and her brother from their home, victim and her brother had not yet been evaluated by a and placed them with their father on July 18, 2013. At psychologist, and consequently conceded that a the time, the victim was 6 years old. and the brother was compelling need for testimony by closed circuit 10 years old. The father's residence [**3] had two television under KRS 421.350 could not be shown. The bedrooms, but housed six people, including the District Court then heard arguments from all parties, Appellant, age 14 at the time. The victim shared one of including the victim's guardian ad litem, regarding [**5] those bedrooms with her brother, J.E.,'’ and another what procedures should be put in place under KRS boy. 26A.140 to shield the child victim from the alleged perpetrator of the offense against her. The court noted During a visit by a CHFS social worker, the victim that the victim was "extremely hesitant" to testify, and disclosed that J.E. had touched her in the genital area, concluded that screens were necessary in order to allow and that her brother had caught J.E. in the act. The the child to do so under KRS 26A. 140. children were subsequently interviewed at the Children's Advocacy Center ("C.A.C."). The victim gave a The final adjudication hearing took place on March 20, statement that J.E. had "licked my kitty cat," (which is 2015. Noting that the victim had "expressed the name by which she referred to her vagina) and her apprehension" at the idea of testifying while able to see brother gave a statement indicating that he had gone J.E. and vice versa, the District Court, pursuant to KRS into the bedroom and pulled the covers off the bed to 26A.140. directed that shields be set up to obstruct the find J.E. stroking the victim's genitals with his fingers view of the defense table from the witness stand during and digitally penetrating her. J.E. gave a statement (and her testimony. The District Court heard the defense later offered similar testimony at the adjudication arguments that the Confrontation Clause required the hearing) that the victim had asked him to perform these Commonwealth to show compelling need for obstructing acts, but he refused her requests. J.E. also stated that the defendant's view of the witnesses, but. relying on its he would have told his mother about the victim's earlier conclusion, ultimately allowed the shields. The behavior, but the mother was heavily under the victim was the only witness so screened. The district influence of drugs and would not have acted on this court also allowed the victim's grandmother, who was information. her custodian and guardian, to sit beside the victim as she testified from counsel's table. CHFS subsequently removed the children from their father's home and placed them with other relatives. Before the adjudication hearing commenced, the court again conducted a brief hearing to determine whether The juvenile [**4] complaint alleging J.E. had committed the victim possessed the competency to offer [**6] sodomy was sworn on December 12, 2013. The Kenton testimony. The court was satisfied with her responses to District Court conducted a competency hearing for the questions intended to reveal whether the victim victim and the brother on August 20, 2014. The victim understood the difference between telling the truth and gave satisfactory responses to questions regarding the lying. When asked about details from the alleged incident, the victim appeared hesitant to answer, but ’J.E. is the son of the significant other of the father of the after encouragement from her grandmother, gave victim, and is thus not related to the victim. responses that satisfied the court that she was capable

Page 2 of 8 521 S.W.3d 210, *213; 2017 Ky. App. LEXIS 99, **6

of recalling facts and relaying them to others. The Circuit Court affirmed the District Court. Specifically, the district court thus found the victim competent. Circuit Court held that the District Court: did not abuse its discretion in finding the victim competent to testify, The Commonwealth's case consisted of the victim's had made a finding of compelling need sufficient to testimony and that of her brother. The victim, who was justify the intrusion upon J.E's right to confrontation, did by then 8 years old, testified that J.E. had licked her not err when allowing the grandmother to reassure the genitals under the covers of the bed they shared, as victim during her testimony, and that the District Court well as touched her with his fingers. She testified that had correctly concluded the evidence was sufficient to her brother witnessed this behavior when he entered the support the adjudication of guilt. The Circuit Court held room and pulled the covers off the bed. Defense that although use of closed circuit television method to counsel impeached this testimony by pointing out that screen "is preferred, the limitation of the Appellant's the victim had denied any digital contact in her C.A.C. right to confront by use of screenjs] in this matter was statement. The brother testified that he had seen J.E. harmless given the totality of the circumstances." [**9] licking the victim's genital region "where she pees," as well as stroking her and digitally penetrating her. J.E. then moved this Court to exercise discretionary Defense counsel impeached this testimony using the review, which this Court granted. brother's C.A.C. statement that failed [**7] to mention seeing any oral-genital contact. II. ANALYSIS J.E.'s case consisted of the testimony of himself and the investigating officer from the Erlanger Police Department. J.E. testified that on the night in question, A. THE DISTRICT COURT DID NOT ABUSE ITS the victim had asked him to lick her vagina, and when DISCRETION IN FINDING THE VICTIM COMPETENT he refused, she went into the bedroom on her own. J.E. TO OFFER TESTIMONY then testified that the brother emerged from the bedroom and informed him "Well, I did it." J.E. further Rule 601 of the Kentucky Rules of Evidence ("KRE") testified that he would have told his mother, but for her provides that a witness is competent unless that intoxicated and unconscious state. The investigating witness: 1) lacks the capacity to accurately perceive the officer testified that J.E. had maintained his innocence matters about which the witness proposes to testify; 2) and that J.E.'s hearing testimony was consistent with a lacks the capacity to recall facts; 3) lacks the capacity to statement he had previously given to law enforcement. express himself or herself so as to be understood, either directly or via interpreter; and 4) lacks the capacity to [*214] After the close of evidence, the District Court understand the obligation to tell the truth. KRE noted that it found the testimony of the victim and her 601(b)(1)-(4). brother credible, and the testimony of J.E. lacked credibility. The District Court concluded that the With regard to the competency of child witnesses, "[i]t evidence did not prove beyond a reasonable doubt that seems to be rather well settled that no rule defines any J.E. had engaged in deviant sexual contact by manual particular age as conclusive of incapacity." Thomas v. contact, but the evidence did prove beyond a Commonwealth, 300 Ky, 480. 189 S.W. 2d 686. 687 (Ky. reasonable doubt that the oral-genital contact had 1945). This rule was echoed as recently as 2002: "Age occurred, and such contact satisfied the elements of is not determinative of competency and there is no first-degree sodomy on a victim under the [**8] age of minimum age for testimonial capacity." Pendleton v. twelve. Commonwealth. 83 S.W.Sd 522. 525 (Ky. 2002). Additionally, the burden of rebutting the presumption of The court adjudged J.E. guilty of a Class A felony competency is on the party seeking exclusion of the sexual offense and he was committed to the custody of witness' testimony. Barton v. Commonwealth. 300 the Department of Juvenile Justice. The Department of S.W.3d 126. 142 iKy. 2009). Juvenile Justice conducted a juvenile sexual offender assessment, concluding that J.E. presented a low risk of The issue of competency of any witness is squarely re-offense, and displayed no signs of sexual within the discretion of the trial court. Bart v. preoccupation or deviant sexual fantasies. Commonwealth, 951 S.W 2d 576, 44 10 Ky. L. J.E. filed a timely appeal to the Circuit Court, wherein he Summary 11 (Kv- 1997): Wombles v. Commonwealth, argued the same errors alleged before this Court. The 831 S.W.2d 172. 39 5 Ky. L. Summary 49 (Ky. 1992).

Page 3 of 8 521 S.W.3d 210, *214; 2017 Ky. App. LEXIS 99, **9

Additionally, "[cjompetency is an ongoing determination history of mental health issues presented a legitimate for a trial court," which continues throughout [**10] the risk that the witness had an inability to differentiate proceedings, even after any competency hearing has between one instance of abuse and another. Here, the been completed. B.B. v. Commonwealth. 226 S.W.3d defense lacks [**12] an allegation, let alone medical 47, 49 (Ky. 2007) (citing Kentucky [*215] v. Stincer, evidence, of any "unfortunate past" of this victim. Only 482 U.S. 730, 107S.Ct. 2658, 96 L.Ed.2d 631 (1987)). this one incident is alleged. Mack cannot apply here, and we cannot conclude the District Court abused its The Circuit Court reviewed the competency proceedings discretion in either denying J.E.'s request for an expert and concluded the District Court had not abused its evaluation. discretion in concluding she was competent. Having reviewed the same proceedings, we agree. The victim From the record, we cannot conclude that the District demonstrated an understanding of the difference Court abused its discretion in finding the victim between truthfulness and lying, as well as the competent to testify. consequences of lying in a court proceeding. Despite J.E.'s insistence, based on the answer to one question, that the victim did not understand that she was not B. THE SCREENS OBSTRUCTING THE allowed to guess at the answers, the victim stated that APPELLANT'S VIEW OF THE VICTIM AS SHE she did not know the answers to several other questions TESTIFIED VIOLATED HIS RIGHT TO rather than offering guesses. The victim demonstrated CONFRONTATION an ability to express herself clearly and an ability to recall facts. On this issue, this Court is tasked in this matter with examining the competing interests of the protection of J.E. nonetheless contends before this Court that in child victims of sexual offenses as witnesses against the instances where a child witness' competency is in right of the accused to confront and cross-examine question, an expert evaluation is vital, and is even these children. required by due process and fundamental fairness. J.E. cites Mack y. Commonwealth, 860 S.W.2d 275 (Ky, Mindful of the infamous 1603 English treason trial of Sir 1993), to support that position. However, that case can Waller Raleigh, where a wrongful conviction resulted easily be distinguished from the facts at hand. In Mack, primarily from a dubious accusatory letter, the founding the child witness had previously been treated by a fathers of our nation included in our Constitution the psychiatrist for post-traumatic stress related [**11] to a right of an accused [*216] to confront those making the prior incident of sexual abuse, and the defense accusations face-to-face. This right has carried forward alleged—with medical evidence in hand—that the child in our justice system, but Sixth Amendment may have been exhibiting transference when making jurisprudence has evolved and now informs us that the allegations against the defendant. Id. at 277-78. The "while face-to-face confrontation is preferred, the prior acts had occurred six years before the acts of primary [**13] right secured by the Confrontation which the victim complained, and the defense sought to Clause is that of cross-examination" (Sparkman v. introduce medical evidence tending to show some Commonwealth, 250 S.W.3d 667, 669 (Ky. 2008) (citing similarities between the prior sexual abuse of the Ohio V. Roberts, 448 U.S. 56. 100 S.Ct. 2531, 65 witness and the new allegations. Id. at 278. The L.Ed.2d 597 (1980)) and "the right to confront is not Supreme Court's ultimate ruling hinged on the Court's absolute and may be limited to accommodate legitimate belief "that the circumstances in the present case competing interests." Id. (citing Chambers y. Missis.sippi. indicate a substantial possibility that a defense or 410 U.S. 284. 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973)). independent expert would provide genuinely relevant The Supreme Court of the United States held, a and beneficial evidence on the question of concoction or factually similar case, Coy v. Iowa, 487 U.S. 1012, 108 transference from the child's unfortunate past." /d. af 277. S.Ct. 2798. 101 L.Ed.2d 857 (1988), that "the irreducible literal meaning of the Clause: 'a right to meet face to We disagree with J.E.'s contention that Mack requires face all those who appear and give evidence at trial." an expert evaluation to determine the competency of Coy at 1021 (quoting California y. Green, 399 U.S. 149, child witnesses. By its own language, the holding of 175, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970) (Harlan, J. Mack appears limited to the narrow set of facts concurring) (emphasis in original)). The Coy Court did, presented in that case, that is. where the witness' however, "leave for another day, however, the question

Page 4 of 8 521 S.W.3d 210, *216; 2017 Ky. App. LEXIS 99. **13

whether any exceptions exist. Whatever they may be, but shall ensure that the child cannot hear or see they would surely be allowed only when necessary to the defendant. further an important public policy." Id. (3) The court may, on the motion of the attorney for Two years later the Suprerhe Court stepped back from any party and upon a finding of compelling need, the hardline rule of Coy, and fleshed out some of those order that the testimony of the child be taken exceptions envisioned in Coy. in Maryland v. Craig, 497 outside the courtroom and be recorded for showing U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), the in the courtroom before the court and the finder of court held that the right to face-to-face confrontation fact in the proceeding. Only those persons may be denied. "In sum, our precedents establish that permitted to be present at the taking of testimony 'the Confrontation Clause reflects a preference for face- under subsection (3) of this section may be present to-face confrontation at trial,' fOhio v.j Roberts, supra, during the taking of the child's testimony, and the 448 US. f56. 63, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) persons operating the equipment shall be confined (abrogated by Crawford v. Washinoton, 541 U.S. 36, from the child's sight and hearing as provided by 124 s et. 1354, 158 L.Ed.2d 177)1 (emphasis added; subsection (3) of this section. The court shall permit footnote omitted), a preference that ‘must occasionally the defendant to observe and hear the testimony of give way to considerations of public policy and the the child in person, but shall ensure that the child necessities of the case.' Mattox f ['’*14] v. (J.S., 156 U.S. cannot hear or see the defendant. The court shall 237, 243, 15 S.Ct 337, 39 LEd. 409 (189511.’' Craip at also ensure that; 849. (a) The recording is both visual and oral and is recorded on film or videotape or by other electronic The Kentucky legislature, by its enactment of KRS means; 421.350, saw fit to address an important public policy interest, the protection of child victims of illegal sexual (b) The recording equipment [**16] was capable of activity when testifying against the alleged perpetrators. making an accurate recording, the operator was Sparkman at 669. The legislature has also announced a competent, and the recording is accurate and is not related and equally important public policy, that of altered; accommodating the special needs of child witnesses, (c) Each voice on the recording is identified; and with the enactment of KRS 26A.140. (d) Each party is afforded an opportunity to view the recording before it is shown in the courtroom. KRS 421.350 applies in prosecutions of sexual offenses [...] where the victim or a witness is under twelve year of age. In pertinent part, it states: (5) For the purpose of subsections (2.) and (31 of this section, "compelling need" is defined as the (2) The court may, on the motion of the attorney for substantial probability that the child would be any party and upon a finding of compelling need, unable to reasonably communicate because of order that the testimony of the child be taken in a serious emotional distress produced by the room other than the courtroom and be televised by defendant's presence. closed circuit equipment in the courtroom to be viewed by the court and the finder of fact in the KRS 421.350(21-(3). (5). proceeding. Only the attorneys for the defendant and for the state, persons necessary to operate the KRS 26A.140 applies in any criminal proceedings equipment, and any person whose presence the requiring the testimony of a child witness. That section court finds would contribute to the welfare and well­ provides: being of the child may be present in the room with (1) Courts shall implement measures to the child during his testimony. Only the attorneys accommodate the special needs of children which may question the child. The persons operating the are not unduly burdensome to the rights of the equipment shall be confined to [**15] an adjacent defendant, including, but not limited to: room or behind a screen or mirror that permits them [-1 to see and hear the child during his testimony, but (b) During trials involving child victims or child does not permit the child to see or hear them. The witnesses, the environment of the courtroom shall court shall permit the defendant to observe and be modified to accommodate children through the hear the testimony of the child in [*217] person. use of small chairs, frequent breaks, and the use of

Page 5 of 8 521 S.W.3d 210. *217; 2017 Ky. App. LEXIS 99, “16

age appropriate language. Craig, and Sparkman, in order to comply with the Confrontation Clause. (c) Children expected to testify shall be prepared for the courtroom experience by the Commonwealth’s We disagree with the Circuit Court in its conclusion that or county attorney handling the case with the the District Court satisfied this requirement in finding assistance of the guardian [**17] ad litem or that the victim was "extremely hesitant" to testify absent special advocate. some modification of the courtroom environment. Not (d) In appropriate cases, procedures shall be used only did the Commonwealth concede that it had no to shield children from visual contact with alleged proof of a compelling need to present during the perpetrator. January 2014 hearing, the District Court took no testimony at all before issuing such a finding, instead KRS 26A. 14Q(1)(b)-(d). the District Court relied on the Commonwealth’s indications that the two child witnesses were The Appellant contends that the actions of the District apprehensive about being in the same room as [**19] Court, in attempting to comply with KRS 26A.140. J.E. violated KRS 421.350 as well as the right to confrontation protected by the 6th Amendment of the Unlike the trial judge in Danner v. CommoiweaKh. 963 federal Constitution and Section 11 of the Kentucky S.W.2d 632. 45 3 Ky. L. Summary 16 (Ky, 1998). the Constitution. The Commonwealth, in its brief, as well as trial court did not make a specific determination that during oral argument in this matter, conceded that a either child witness could or would not testify as to the Confrontation Clause violation occurred, instead arguing offense, or that their testimony would be inhibited if that the error was harmless and did not merit reversal of given in front of the accused. The compelling need the conviction under Chapman v. California, 386 U.S. language of KRS 421.350 requires a determination that 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967}. the child witness would be unable to testify in open court. "’The Kentucky Statute does not provide a blanket On appeal, the Circuit Court found that no Confrontation process for taking the testimony of every child witness Clause violation occurred, as the screening resulted by TV simply because testifying may be stressful.” Price from a finding that a compelling need existed to do so, V. Commonwealth, 31 S.W.Sd 885, 894 iKy. 2000) but also noted that any error in the screening method (quoting George v. Commonwealth. 885 S.W.2d 938, was harmless. Specifically, the Circuit Court noted that 941, 41 11 Ky. L. Summary 12 (Ky, 1904)). while the [*218] closed circuit television method of separating child victims from their accusers (the method The Commonwealth having failed to present satisfactory prescribed in KRS 421.350) would have served the proof of a compelling need before the District Court, we same purpose, no harm resulted from the District must conclude that the District Court abused its Court’s use of screens. discretion and violated the Appellant’s right to confrontation in erecting the screens to obstruct J.E.’s We reject the Appellant’s contention that compliance view of the witness during her testimony. Consequently, with KRS 26A.140 necessarily requires implementation we must reverse the Circuit Court in affirming the same of the procedures set forth in KRS 421.350. The conclusion. legislature has had ample opportunity to amend [**18] KRS 26A.140 if it intended the phrase "procedures shall The issue now becomes one of remedy for the be used to shield children from visual contact with constitutional violation. The Supreme Court held in alleged perpetrator" to mean compliance with KRS Chapman that not all constitutional violations merit 421.350, or to amend KRS 421.350 to reference KRS automatic reversal of a conviction. "Although our prior 26A.140. We can only interpret the plain meaning of the cases have indicated that there are some constitutional words, which do not mandate taking of child witnesses’ rights so basic to a fair [**20] trial that their infraction testimony via closed circuit television in e/fher provision. can never be treated as harmless error, this statement in Fahy [v. Connecticut, 375 U.S. 85. 84 S.Ct. 229. 11 On the other hand, we interpret the phrase "not unduly L.Ed.2d 171 11963)/^ itself belies any belief that all trial burdensome to the rights of the defendant" from KRS 26A.140 to be analogous to the requirement of a finding of a "compelling need" found in KRS 421.350, as both provisions would require such finding under Chambers, The statement from Fahy to which the Chapman Court refers is as follows: "The question is whether there is a reasonable

Page 6 of 8 521 S.W.3d 210, *218; 2017 Ky. App. LEXIS 99, **20 errors which violate the Constitution automatically call the error." RCr 10.26. "For an error to rise to the for reversal." Chapman at 827-28. A, conviction may level of palpable, 'it [**22] must be easily stand, despite a constitutional [*219] error, if that error perceptible, plain, obvious and readily noticeable.'" is not merely harmless, but harmless beyond a Doneahy y. Commonwealth. 410 S.W.3d 95 (Ky. reasonable doubt. Chapman at 828. 2013) (quoting Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky.2006)). Generally, a palpable The Circuit Court's opinion affirming concluded that the error affects the substantial rights of the party "only use of screens rather than closed circuit television was if it is more likely than ordinary error to have merely harmless. For the purpose of this analysis, we affected the judgment." Ernst v. Commoirwealth, must ignore the challenged evidence, the testimony of 160 S.W.3d 744. 762 (Ky. 2005). the victim, and examine the relative strength of the Commonwealth's case without it. Without the victim's Martin v. Commonwealth, 409 S.W.3d 340. 34F (Ky. testimony, the trial court would be limited to the 2013). testimony of the brother, who gave a prior statement which was inconsistent with his trial testimony. This is The Appellant's argument on this issue amount to little significant in that his prior statement lacked any more than speculation and self-serving conclusory indication of oral-genital contact, and only indicated allegations. He argues that the trial court found the two manual contact with the victim. The brother testified child witnesses, the victim in particular, more credible as during the adjudication hearing that he witness oral- the result of the "suggestive reinforcement" by the genital contact. The District Court based its conclusion grandmother during testimony. He argues, entirely that J.E. committed first-degree sodomy on the finding without support, that "well-meaning reassurances and of credibility of the victim's [**21] testimony and her reinforcement can taint a child's recollection and brother's, and the lack of credibility of J.E.'s testimony. It testimony." He extended his argument that this is reasonable that the consistency between the victim's somehow bolstered the credibility of these witnesses testimony and the brother's trial testimony provided a and the outcome was affected because "the court is not boost in credibility to both. Absent that extra credibility, if immune to the effect of credibility bolstering any more is equally reasonable that the inconsistent testimony of than juror would be." the brother would not weigh as heavily against the testimony of J.E. We must conclude that a reasonable However, there is no evidence or even allegation that possibility exists that the victim's testimony, taken in a the grandmother fed answers to either witness or even situation which violated J.E.'s constitutional right to said anything [*220] beyond comforting reassurances confront the witnesses against him, contributed to his to the small children in her care in a stressful situation. conviction, it was not, therefore, harmless beyond a We cannot conclude that this interference more likely reasonable doubt. than not affected the outcome of the [**23] hearing. Though irregular and something the District Court should have admonished her against doing, we cannot C. THE DISTRICT COURT, IN ALLOWING THE conclude that the grandmother's behavior rises to the GRANDMOTHER TO ENCOURAGE THE VICTIM level of palpable error. DURING TESTIMONY, DID NOT COMMIT PALPABLE ERROR D. THIS COURT'S CONCLUSION RELATING TO THE The Court's analysis now moves to the unpreserved CONSTITUTIONAL VIOLATION PROHIBITS THE error relating to the grandmother's encouragement of CONCLUSION THAT EVIDENCE WAS SUFFICIENT the victim. TO SUPPORT THE DISTRICT COURT'S FINDING OF GUILT Under RCr 10.26, an unpreserved error may generally be noticed on appeal if the error is Appellate review of the sufficiency of the evidence in a "palpable" and /fit "affects the substantial rights of a juvenile proceeding is whether any rational finder of fact, party." Even then, relief is appropriate only "upon a taking the Commonwealth's evidence in the most determination that manifest injustice resulted from favorable light, could find the essential elements of an offense are satisfied beyond a reasonable doubt. R.S. v. Commonwealth, 423 S.W.3d 178, 187 (Ky. 2014) possibility that the evidence complained of might have (quoting Jackson v. Virginia, 443 U.S. 307. 99 S.Ct. contributed to the conviction." Fahy at 86-87.

Page 7 of 8 521 S.W.Sd 210, *220; 2017 Ky. App. LEXIS 99. “23

2781, 61 LEd.2d56Q (1979}}.

J.E. alleges three reasons to justify finding that the evidence presented failed to meet that standard. First, he argues that the victim's competency was questionable. Second, he argues that the brother’s testimony suffered from credibility issues. Third, he argues that the District Court did not believe the entirety of the evidence presented (as reflected by the conviction of sodomy based solely on the oral-genital contact and not on the digital penetration).

As discussed at length above, the District Court did not abuse its discretion in finding the victim [**24] competent, and any arguments made by the Appellant regarding that issue have been obviated by our conclusion above. Regarding his second and third arguments on this issue, questions of the weight of evidence in juvenile proceedings fall within the trial court's discretion as the fact-finder. S.D.O. v. Commonwealth, 255 S.W.Sd 517, 521 (Ky. App, 2008) ("If is well-settled that the weight of the evidence and credibility of witnesses are functions peculiarly within the trier of fact's determination and will not be disturbed.") The Appellant had, and took advantage of, an opportunity to assail the credibility of these witnesses, and the District Court simply believed the Commonwealth's evidence more than his own. This is neither error, nor abuse of discretion.

However, because the District Court considered evidence which was introduced in violation of J.E.'s constitutional rights, the determination becomes suspect, and we can no longer conclude with the necessary confidence that the evidence was sufficient.

III. CONCLUSION

This Court having reviewed the record, we affirm the Circuit Court and District Courts' rulings relating to the competency of the child witnesses and the grandmother’s alleged interference in the victim's testimony. However, after [**25] finding reversible error in the rulings of the Circuit Court and the District Court relating to the violation of J.E.'s right to confrontation, we reverse the conviction and remand for a new adjudication hearing consistent with this opinion.

ALL CONCUR

End of hociuHciK

Page 8 of 8 Evidence Rules Review Commission Minority Report

The General Assembly proposed a new Rule of Evidence creating an additional hearsay exception that would create a mechanism for admitting specific hearsay statements of children found by the Court to have sufficient guarantees of trustworthiness and reliability. Following the proposal of this rule, the Supreme Court reactivated the dormant Evidence Rules Review Commission, as set forth in KRE 1102 and 1103. The Proposed Rule changed materially throughout the process to account for legal and practical concerns raised by Commission members. While neither KRE 1102 nor 1003 call for the Commission to vote on a proposed rule, the Commission did, and the proposed rule was narrowly defeated, 5-4. The following, by request of the Chair of the Commission, is a minority report on the Proposed Rule. Under the Proposed Rule, hearsay statements made by children 12 and under may be admissible under certain circumstances based on findings following a pre-trial hearing, wherein the proponent establishes that the totality of the circumstances indicate the statement is inherently reliable and trustworthy. The Court shall consider “all of the circumstances surrounding the making of the statement, including, but not limited to, spontaneity, the internal consistency of the statement, the mental state of the child, the child’s motive or lack of motive to fabricate, the child’s use of terminology unexpected of a child of similar age, the means by which the statement was elicited, and the lapse of time between the act and the statement.” Critically, there is no mechanism under current law to permit the admission of the kind of evidence targeted by the Proposed Rule. Without this rule, the admission of relevant, probative, trustworthy, and reliable evidence is precluded, which should never be the desired outcome. Several other states have similar provisions, but the proposed rule most closely resembles Ohio’s, which has been in effect for many years. The Ohio rule was challenged and ultimately upheld by the United States Supreme Court in Ohio v. Clark, 135 S. Ct. 2173 (2015). The Supreme Court held in Clark that the out-of-court statements of the victim were non-testimonial in nature, created in the context of an ongoing emergency of suspected child abuse, and the statements were made to identify and put an end to the threat. In Clark, the disclosure to the teacher was not in a formalized setting and not disclosed to someone charged with the role of uncovering or prosecuting criminal behavior, such as a police officer. The statements were made in the context of an ongoing emergency involving suspected child abuse, to teachers aimed at identifying and ending the threat. The conversation was informal and spontaneous. The nontestimonial nature of the child’s statement, the Court decided, rendered the admission of the statement constitutional under the Sixth Amendment.

ERRC Minority Report Page 1 of2 The Proposed Rule aims to provide an opportunity to admit evidence that does not fall under an existing exception to the hearsay rule. Such hearsay statements often come days, weeks, or even months after the fact, ruling out the use of the excited utterance exception. When attempts were made to admit hearsay evidence that named the assailant under the medical diagnosis exception, the Kentucky Supreme Court in Colvard v. Commonwealth, 309 S.W.Sd 239 (Ky. 2010), rightly ruled that such statements, regardless of their reliability and trustworthiness, fail the first part of the two-step test set forth in Morgan V. Foretich, 846 F.2d 941, 949 (4th Cir. 1988). In Colvard, the Court reiterated that the motive of the patient to obtain care (the source of credibility of statements to medical professionals) does not extend to statements that name the assailant, as the statements do not strictly relate to the diagnosis of a medical condition by the medical professional. The majority opinion on the Proposed Rule expresses concern that the rule violates the right to confrontation, but by its own terms, the rule cannot. Testimonial statements are precluded and inadmissible under the proposed hearsay exception. The majority further argues that the rule “represents a significant departure from the established framework of the hearsay rule,” but Colvard has closed the only door to this evidence that was remotely ajar. No existing rule of evidence permits even the consideration, much less the admission, of evidence that is otherwise relevant, probative, reliable, and trustworthy. The Proposed Rule seeks to create the safest environment in which to consider the admissibility of such evidence, consistent with the U.S. Supreme Court’s guidance in Clark. Under these circumstances, a thoughtful, careful departure from the “established framework” of hearsay evidence is overdue.

Respectfully submitted.

Whitney Westerfield State Senator, 3"* District

Joe Fischer House of Representatives, 68‘*’ District

Jackie Steele Commonwealth’s Attorney, 27'^ Judicial Court

ERRC Minority Report Page 2 of 2 UNOFFICIAL COPY 18RSSB 137/GA

1 AN ACT relating to the Kentucky Rules of Evidence.

2 Be it enacted by the General Assembly of the Commonwealth of Kentucky:

3 ■♦SECTION 1. A NEW SECTION OF THE KENTUCKY RULES OF

4 EVIDENCE 801 TO 806 IS CREATED TO READ AS FOLLOWS:

5 (a) An out-of-court statement made by a child with a physical, mental, emotional, or

6 developmental ase of twelve (12) years or less at the time of trial or hearins

7 describing any sexual act performed by, with, or on the child or describins any

8 act of physical violence directed against the child is not excluded as hearsay

9 under KRE 802 if all of the following apply:

10 (I) The court finds that the totality of the circumstances surrounding the

11 making of the statement provides particularized guarantees of

12 trustworthiness. In making its determination of the reliability of the

13 statement, the court shall consider all of the circumstances surrounding the

14 making of the statement, including but not limited to spontaneity, the

15 internal consistency of the statement, the mental state of the child, the

16 child’s motive or lack of motive to fabricate, the child’s use of terminology

17 unexpected of a child of similar age, the means by which the statement was

18 elicited, and the lapse of time between the act and the statement:

19 (21 Either:

20 (A) The child testifies but his or her testimony does not include

21 information contained in the out-of-court statement; or

22 (B) The child's testimony is not reasonably obtainable by the proponent of

23 the statement and there is corroborative evidence of the act that is the

24 subject of the statement;

25 (3) The primary purpose of the child's statement was not to create an out-of-

26 court substitute for trial testimony; and

27 (4) At least ten (10) days before the trial or hearing, a proponent of the

Page 1 of3 SB013710.100-6I -XXXX GA UNOFFICIAL COPY 18RSSB 137/GA

1 Statement has notified all other parties in writins of the content of the

2 statement, the time and place at which the statement was made, the identity

3 of the witness who is to testify about the statement, and the circumstances

4 surrounding the statement that are claimed to indicate its trustworthiness.

5 (b) (1) The child’s testimony is "not reasonably obtainable by the proponent of the

6 statement" under subsection (a)(2)(B) of this rule if one (1) or more of the

7 following apply:

8 (A) The child claims a lack of memory of the subject matter of the

9 statement;

10 (B) The court finds:

11 (i) The child is absent from the trial or hearing;

12 (ii) The proponent of the statement has been unable to procure the

13 child’s attendance or testimony by process or other reasonable

14 means despite a good-faith effort to do so; and

15 (Hi) It is probable that the proponent would be unable to procure the

16 child’s testimony or attendance if the trial or hearing were

17 delayed for a reasonable time; or

18 (C) The court finds:

19 (i) The child is unable to testify at the trial or hearing because of:

20 a. Death;

21 b. Physical or mental illness; or

22 c. Infirmity, including the child's inability to communicate

23 about the offense because of fear or a similar reason; and

24 (ii) The illness or infirmity would not improve sufficiently to permit

25 the child to testify if the trial or hearing were delayed for a

26 reasonable time. n (2) The proponent of the statement has not established that the child’s

Page 2 of 3 SB013710.100 - 61 -XXXX GA UNOFFICIAL COPY 18RSSB 137/GA

1 testimony or attendance is not reasonably obtainable if the child’s claim of

2 lack of memory, absence, or inability is due to the procurement or

3 wronedoine of the proponent of the statement for the purpose of preventins

4 the child from attendins or testifyins.

5 (cl The court shall make the findings required by this rule on the basis of a hearins

6 conducted outside the presence of the jury and shall make findinss of fact, on the

7 record, as to the bases for its rulins.

8 (d) If any provision of this rule should conflict with Article VIII of these rules, this

9 rule shall prevail.

Page 3 of 3 SB01371O.IOO-61 -XXXX GA Ohio V. Clark, 135 S.Ct. 2173 (2015) 192 L.Ed.2d 306, 83 USLW 4484, 15 Cal. Daily Op. Serv. 6248...

Justice Thomas filed an opinion concurring in the judgment. KeyCite Yellow Flag - Negative Treatment Distinguished by State v. Williams, Kan., April 21, 2017 135 S.Ct. 2173 Supreme Court of the United States West Headnotes (14)

OHIO, Petitioner V. [1] Criminal Law Darius CIARK. *= Out-of-court statements and hearsay in general No. 13-1352. Under the “primary purpose” test for I determining whether out-of-court statements Argued March 2, 2015. are testimonial for Confrontation Clause I purposes, the existence vel non of an Decided June 18, 2015. ongoing emergency is not the touchstone of the testimonial inquiry; instead, whether an Synopsis ongoing emergency exists is simply one factor Background: Defendant was convicted in the Ohio that informs the ultimate inquiry regarding Court of Common Pleas, Cuyahoga County, of the “primary purpose” of an interrogation. felonious assault, child endangerment, and domestic U.S.C.A. Const.Amend. 6. violence arising out of his alleged physical abuse of his girlfriend's three-year-old son and 18-month old 20 Cases that cite this headnote daughter. Defendant appealed, and the Ohio Court of Appeals, 2011 WL 6780456, reversed and remanded on the [2] Criminal Law ground that introduction of three-year-old victim's out- Out-of-court statements and hearsay in of-court statements violated the Confrontation Clause. general State appealed, and the Ohio Supreme Court, 137 Ohio St.3d 346.999 N.E.2d 592, affirmed the Court of Appeals. One factor in the determination of whether Certiorari was granted. out-of-court statements are testimonial for Confrontation Clause purposes is the informality of the situation and the interrogation; a formal station-house Holdings: The United States Supreme Court, Justice Alito, interrogation is more likely to provoke held that: testimonial statements, while less formal questioning is less likely to reflect a primary [1] three-year-old victim's statements to his preschool purpose aimed at obtaining testimonial teachers identifying defendant as the person who had evidence against the accused. U.S.C.A. caused his injuries were not testimonial, and Const.Amend. 6.

[2] fact that Ohio law barred incompetent children from 17 Cases that cite this headnote testifying did not make it fundamentally unfair for trial court to admit three-year-old victim's statements. [3] Criminal Law Out-of-court statements and hearsay in Reversed and remanded. general In determining whether an out-of-court Justice Scalia filed an opinion concurring in the judgment, statement is testimonial for Confrontation in which Justice Ginsburg joined. Clause purposes, standard rules of hearsay, designed to identify some statements

WESTLAW © 2017 Thomson Reuters. No claim to original U.S. Government Works. Ohio V. Clark, 135 S.Ct. 2173 (2015) 192 L.Ed.2d 306, 83 USLW 4484, 15 Cal. Daily Op. Serv. 6248.,

as reliable, will be relevant. U.S.C.A. Const.Amend. 6. 17] Criminal Law ij- Out-of-court statements and hearsay in 4 Cases that cite this headnote general The “primary purpose” test for determining [4] Criminal Law whether an out-of-court statement is Out-of-court statements and hearsay in testimonial for Confrontation Clause general purposes is a necessary, but not always sufficient, condition for the exclusion of out- Under the “primary purpose” test of-court statements under the Confrontation for determining whether an out-of-court Clause. U.S.C.A. Const.Amend. 6. statement is testimonial for Confrontation Clause purposes, the question is whether, 50 Cases that cite this headnote in light of all the circumstances, viewed objectively, the primary purpose of the conversation was to create an out-of-court [8] Criminal Law substitute for trial testimony. U.S.C.A. Out-of-court statements and hearsay in Const.Amend. 6. general Three-year-old domestic abuse victim's 75 Cases that cite this headnote statements to teachers at his preschool identifying defendant, who was his mother's |5] Criminal Law boyfriend, as the person who had caused V- Out-of-court statements and hearsay in his injuries were not testimonial, and thus general Confrontation Clause did not bar admission of the statements at defendant's trial on A statement cannot fall within the charges including felonious assault and Confrontation Clause unless its primary domestic violence, at which victim did purpose was testimonial; where no such not testify because he had been deemed primary purpose exists, the admissibility of a incompetent due to his age; primary purpose statement is the concern of state and federal of the statements was not to create evidence rules of evidence, not the Confrontation for defendant's prosecution, but rather Clause. U.S.C.A. Const.Amend. 6. statements occurred in the context of an 61 Cases that cite this headnote ongoing emergency involving suspected child abuse, and were aimed at identifying and ending the threat. U.S.C.A. Const.Amend. 6; [6] Criminal Law Rules of Evid., Rules 601(A), 807. Out-of-court statements and hearsay in general 5 Cases that cite this headnote The fact that an out-of-court statement cannot fall within the Confrontation Clause [9| Criminal Law unless its primary purpose was testimonial Out-of-court statements and hearsay in does not mean that the Confrontation general Clause bars every statement that satisfies the Statements by very young children will rarely, “primary purpose” test; the Confrontation if ever, implicate the Confrontation Clause. Clause does not prohibit the introduction of U.S.C.A. Const.Amend. 6. out-of-court statements that would have been admissible in a criminal case at the time of the 13 Cases that cite this headnote founding. U.S.C.A. Const.Amend. 6.

46 Cases that cite this headnote |10| Criminal Law

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Out-of-court statements and hearsay in general 2 Cases that cite this headnote Courts determining whether out-of-court statements are testimonial for purposes of [13] Criminal Law the Confrontation Clause must evaluate Out-of-court statements and hearsay in challenged statements in context, and part general of that context is the questioner's identity; Criminal Law statements made to someone who is Availability of declarant not principally charged with uncovering Fact that Ohio law barred incompetent and prosecuting criminal behavior are children from testifying did not make it significantly less likely to be testimonial than fundamentally unfair for trial court in statements given to law enforcement officers. prosecution on charges including felonious U.S.C.A. Const.Amend. 6. assault and domestic violence to admit, 37 Cases that cite this headnote as non-testimonial under the Confrontation Clause, three-year-old victim's statements to teachers at his preschool identifying |11| Criminal Law defendant, who was his mother's boyfriend, *=> Out-of-court statements and hearsay in as the person who caused his injuries; any general Confrontation Clause case would involve Fact that preschool teachers to whom an out-of-court statement admissible under three-year-old domestic abuse victim made a hearsay exception and probative of statements identifying defendant, who was defendant's guilt made by an unavailable his mother's boyfriend, as the person who in-court witness, and fact that witness caused his injuries had mandatory reporting was unavailable due to a different rule obligations with respect to child abuse did of evidence did not change the analysis. not make victim's statements testimonial U.S.C.A. Const.Amend. 6; Rules of Evid., for Confrontation Clause purposes, even Rules 601(A), 807. if teachers' questions and their duty to report had a natural tendency to result in 4 Cases that cite this headnote defendant's prosecution; teachers' primary concern was to protect victim, and teachers ]14| Criminal Law would undoubtedly have acted with same Out-of-court statements and hearsay in purpose regardless of their duty to report. general U.S.C.A. Const.Amend. 6. Alleged fact that jury at trial on charges 2 Cases that cite this headnote including felonious assault and domestic violence treated as the functional equivalent of testimony three-year-old victim's out- (12] Criminal Law' of-court statements to preschool teachers Out-of-court statements and hearsay in identifying defendant, who was his mother's general boyfriend, as person who caused his injuries Mandatory reporting statutes alone cannot did not make such statements testimonial convert a conversation between a concerned for Confrontation Clause purposes; argument teacher and her student into a law would lead to conclusion that virtually all out- enforcement mission aimed primarily at of-court statements offered by prosecution gathering evidence for a prosecution, so as were testimonial, and question was not to make the student's statements testimonial whether jury would view a statement as for Confrontation Clause purposes. U.S.C.A. equivalent to in-court testimony, but whether Const.Amend. 6. statement was given with primary purpose

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of creating out-of-court substitute for trial 128 S.Ct. 2678, 171 L.Ed.2d 488; Crawford. 541 U.S., at testimony. U.S.C.A. Const.Amend. 6. 56, n. 6, 62, 124 S.Ct. 1354. Thus, the primary purpose test is a necessary, but not always sufficient, condition 42 Cases that cite this headnote for the exclusion of out-of-court statements under the Confrontation Clause. Pp. 2179 - 2181.

(b) Considering all the relevant circumstances, L.P.'s statements were not testimonial. L.P.'s statements were *2175 Syllabus not made with the primary purpose of creating evidence for Clark's prosecution. They occurred in the context of Respondent Darius Clark sent his girlfriend away to an ongoing emergency involving suspected child abuse. engage in prostitution *2176 while he cared for her 3- L.P.'s teachers asked questions aimed at identifying and year-old sonL.P. and 18-month-old daughter A.T. When ending a threat. They did not inform the child that L.P.'s preschool teachers noticed marks on his body, he his answers would be used to arrest or punish his identified Clark as his abuser. Clark was subsequently abuser. L.P. never hinted that he intended his statements tried on multiple counts related to the abuse of both to be used by the police or prosecutors. And the children. At trial, the State introduced L.P.'s statements conversation was informal and spontaneous. L.P.'s age to his teachers as evidence of Clark's guilt, but L.P. further confirms that the statements in question were not did not testify. The trial court denied Clark's motion testimonial because statements by very young children will to exclude the statements under the Sixth Amendment's rarely, if ever, implicate the Confrontation Clause. As a Confrontation Clause. A jury convicted Clark on all historical matter, moreover, there is strong evidence that but one count. The state appellate court reversed the statements made in circumstances like these were regularly conviction on Confrontation Clause grounds, and the admitted at common law. Finally, although statements Supreme Court of Ohio affirmed. to individuals other than law enforcement officers are not categorically outside the Sixth Amendment's reach, Held: The introduction of L.P.'s statements at trial did not the fact that E.P. was speaking to his teachers is violate the Confrontation Clause. Pp. 2179-2183. highly relevant. Statements to individuals who are not principally charged with uncovering and prosecuting (a) This Court's decision in Crawford v. W ashington, 541 criminal behavior are significantly less likely to be U.S. 36, 54,124 S.Ct. 1354,158 L.Ed.2d 177, held that the testimonial than those given to law enforcement officers. Confrontation Clause generally prohibits the introduction Pp. 2180-2182. of “testimonial” statements by a nontestifying witness, unless the witness is “unavailable to testify, and the *2177 (c) Clark's arguments to the contrary are defendant had had a prior opportunity for cross- unpersuasive. Mandatory reporting obligations do not examination.” A statement qualifies as testimonial if the convert a conversation between a concerned teacher and “primary purpose” of the conversation was to “creat[e] an her student into a law enforcement mission aimed at out-of-court substitute for trial testimony.” Michigan r. gathering evidence for prosecution. It is irrelevant that Bryant, 562 U.S. 344, 369,131 S.Ct. 1143,179 L.Ed.2d 93. the teachers' questions and their duty to report the matter In making that “primary purpose” determination, courts had the natural tendency to result in Clark's prosecution. must consider “all of the relevant circumstances.” Ibid. And this Court's Confrontation Clause decisions do not “Where no such primary purpose exists, the admissibility determine whether a statement is testimonial by examining of a statement is the concern of state and federal rules whether a jury would view the statement as the equivalent of evidence, not the Confrontation Clause.” Id, at of in-court testimony. Instead, the test is whether a 359, 131 S.Ct. 1143. But that does not mean that the statement was given with the “primary purpose of creating Confrontation Clause bars every statement that satisfies an out-of-court substitute for trial testimony.” Bryant, the “primary purpose” test. The Court has recognized supra, at 358, 131 S.Ct. 1143. Here, the answer is clear; that the Confrontation Clause does not prohibit the L.P.'s statements to his teachers were not testimonial. Pp. introduction of out-of-court statements that would have 2182-2183. been admissible in a criminal case at the time of the founding. See Gile.s v. California, 554 U.S. 353, 358-359,

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137 Ohio St.3d 346, 2013-Ohio-4731, 999 N.E.2d 592, reversed and remanded. I

ALITO, J., delivered the opinion of the Court, in Darius Clark, who went by the nickname “Dee,” lived which ROBERTS, C.J., and KENNEDY, BREYER, in Cleveland, Ohio, with his girlfriend, T.T., and her two SOTOMAYOR, and KAGAN, JJ., joined. SCALIA, J., children: L.P., a 3-year-old boy, and A.T., an 18-month- filed an opinion concurring in the judgment, in which old girl. ’ Clark was also T.T.'s pimp, and he would GINSBURG, J., joined. THOMAS, J., filed an opinion regularly send her on trips to Washington, D.C., to work concurring in the judgment. as a prostitute. In March 2010, T.T. went on *2178 one such trip, and she left the children in Clark's care. Attorneys and Law Firms The next day, Clark took L.P. to preschool. In the Matthew E. Meyer, for Petitioner. lunchroom, one of L.P.'s teachers, Ramona Whitley, observed that L.P.'s left eye appeared bloodshot. She Hana Eisenstein, for the United States as amicus curiae, asked him “ ‘[wjhat happened,’ ” and he initially said by special leave of the Court. nothing. 137 Ohio St.3d 346, 347, 2013-Ohio-4731, 999 N.E.2d 592, 594. Eventually, however, he told the teacher Jeffrey L. Fisher, Stanford, CA, for Respondent. that he “ ‘fell.’ ” Ibid. When they moved into the brighter Erika Cunliffe, Jeffrey M. Gamso, Cuyahoga County lights of a classroom, Whitley noticed “ ‘[r]ed marks, like Public Defender's Office, Cleveland, OH, Donald B. Ayer, whips of some sort,’ ” on L.P.'s face. Ibid. She notified Jones Day, Washington, DC, Jeffrey L. Fisher, Counsel of the lead teacher, Debra Jones, who asked L.P., “ ‘Who Record, Brian Wolfman, Stanford Law School, Supreme did this? What happened to you?’ ” Id., at 348, 999 Court Litigation Clinic, Stanford, CA, for Respondent. N.E.2d, at 595. According to Jones, L.P. “ ‘seemed kind of bewildered’ ” and “ ‘said something like. Dee, Dee.’ ” Michael DeWine, Attorney General of Ohio, Eric Ibid. Jones asked L.P. whether Dee is “big or little,” to E. Murphy, State Solicitor, Samuel Peterson, Deputy which L.P. responded that “Dee is big.” App. 60,64. Jones Solicitor, Columbus, OH, Timothy J. McGinty, then brought L.P. to her supervisor, who lifted the boy's Cuyahoga County Prosecutor, Katherine E. Mullin, shirt, revealing more injuries. Whitley called a child abuse Counsel of Record, Assistant Prosecuting Attorney, hotline to alert authorities about the suspected abuse. Cleveland, OH, for Petitioner. When Clark later arrived at the school, he denied Opinion responsibility for the injuries and quickly left with L.P. The next day, a social worker found the children at Clark's Justice ALITO delivered the opinion of the Court. mother's house and took them to a hospital, where a Darius Clark sent his girlfriend hundreds of miles away physician discovered additional injuries suggesting child to engage in prostitution and agreed to care for her two abuse. L.P. had a black eye, belt marks on his back and young children while she was out of town. A day later, stomach, and bruises all over his body. A.T. had two black teachers discovered red marks on her 3-year-old son, and eyes, a swollen hand, and a large burn on her cheek, and the boy identified Clark as his abuser. The question in two pigtails had been ripped out at the roots of her hair. this case is whether the Sixth Amendment's Confrontation Clause prohibited prosecutors from introducing those A grand jury indicted Clark on five counts of felonious statements when the child was not available to be cross- assault (four related to A.T. and one related to L.P.), examined. Because neither the child nor his teachers had two counts of endangering children (one for each child), the primary purpose of assisting in Clark's prosecution, and two counts of domestic violence (one for each the child's statements do not implicate the Confrontation child). At trial, the State introduced L.P.'s statements Clause and therefore were admissible at trial. to his teachers as evidence of Clark's guilt, but L.P. did not testify. Under Ohio law, children younger than 10 years old are incompetent to testify if they “appear incapable of receiving just impressions of the facts and

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transactions respecting which they are examined, or of relating them truly.” Ohio Rule Evid. 601(A) (Lexis 2010). After conducting a hearing, the trial court concluded that L.P. was not competent to testify. But under Ohio Rule The Sixth Amendment's Confrontation Clause, which of Evidence 807, which allows the admission of reliable is binding on the States through the Fourteenth hearsay by child abuse victims, the court ruled that L.P.'s Amendment, provides: “In all criminal prosecutions, the statements to his teachers bore sufficient guarantees of accused shall enjoy the right ... to be confronted with trustworthiness to be admitted as evidence. the witnesses against him.” In Ohio v. Roberts, 448 U. S. 56, 66, 100 S.Ct. 2531. 65 L.Ed.2d 597 (1980), we Clark moved to exclude testimony about L.P.'s out-of- interpreted the Clause to permit the admission of out-of- court statements under the Confrontation Clause. The court statements by an unavailable witness, so long as the trial court denied the motion, ruling that L.P.'s responses statements bore “adequate ‘indicia of reliability.’ ” Such were not testimonial statements covered by the Sixth indicia are present, we held, if “the evidence falls within a Amendment. The jury found Clark guilty on all counts firmly rooted hearsay exception” or bears “particularized except for one assault count related to A.T., and it guarantees of trustworthiness.” Ibid. sentenced him to 28 years' imprisonment. Clark appealed his conviction, and a state appellate court reversed on In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, the ground that the introduction of L.P.'s out-of-court 158 L.Ed.2d 177 (2004), we adopted a different approach. statements violated the Confrontation Clause. We explained that “witnesses,” under the Confrontation Clause, are those “who bear testimony,” and we defined In a 4-to-3 decision, the Supreme Court of Ohio “testimony” as “a solemn declaration or affirmation made affirmed. It held that, under this Court's Confrontation for the purpose of establishing or proving some fact.” Clause decisions, L.P.'s statements qualified as testimonial Id., at 51, 124 S.Ct. 1354 (internal quotation marks and because the primary purpose of the teachers' questioning alteration omitted). The Sixth Amendment, we concluded, “was not to deal with an existing emergency but prohibits the introduction of testimonial statements by a rather to gather evidence potentially relevant to a nontestifying witness, unless the witness is “unavailable to subsequent criminal prosecution.” 137 Ohio St.3d, at testify, and the defendant had had a prior opportunity for 350, 999 N.E.2d, at 597. The court noted that Ohio cross-examination.” Id., at 54, 124 S.Ct. 1354. Applying has a “mandatory reporting” law that requires certain that definition to the facts in Crawford, we held that professionals, including preschool teachers, to report statements by a witness during police questioning at the suspected child abuse to government authorities. See station house were testimonial and thus could not be *2179 id., at 349-350, 999 N.E.2d, at 596 597. In the admitted. But our decision in Crawford did not offer an court's view, the teachers acted as agents of the State under exhaustive definition of “testimonial” statements. Instead, the mandatory reporting law and “sought facts concerning Crawford stated that the label “applies at a minimum to past criminal activity to identify the person responsible, prior testimony at a preliminary hearing, before a grand eliciting statements that ‘are functionally identical to live, jury, or at a former trial; and to police interrogations.” Id, in-court testimony, doing precisely what a witness does at 68, 124 S.Ct. 1354. on direct examination.’ ” Id, at 355, 999 N.E.2d, at 600 (quoting Melendez-Diaz r. Massachusett.s, 557 U.S. 305, Our more recent cases have labored to flesh out what 310-311, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009); some it means for a statement to be “testimonial.” In Davis internal quotation marks omitted). V. Washington and Hammon v. Indiana. 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), which we We granted certiorari, 573 U.S.----- , 135 S.Ct. 43, 189 decided together, we dealt with statements given to law L.Ed.2d 896 (2014), and we now reverse. enforcement officers by the victims of domestic abuse. The victim in Davis made statements to a 911 emergency operator during and shortly after her boyfriend's violent II attack. In Hammon, the victim, after being isolated from her abusive husband, made statements to police that were

WESTLAW © 2017 Thomson Reuters, No claim to original U.S, Government Works. Ohio V. Clark, 135 S.Ct 2173 (2015) 192 L.Ed.2d 306, 83 USLW 4484, 15 Cal. Daily Op. Serv. 6248... memorialized in a “ ‘battery affidavit.’ ” Id., at 820, 126 is testimonial, “standard rules of hearsay, designed to S.Ct. 2266. identify some statements as reliable, will be relevant.” Id., at 358-359, 131 S.Ct. 1143. In the end, the question We held that the statements in Hammon were testimonial, is whether, in light of all the circumstances, viewed while the statements in Davis were not. Announcing what objectively, the “primary purpose” of the conversation has come to be known as the “primary purpose” test, was to “creat[e] an out-of-court substitute for trial we explained: “Statements are nontestimonial when made testimony.” Id, at 358, 131 S.Ct. 1143. Applying these in the course of police interrogation under circumstances principles in Bryant, we held that the statements made by objectively indicating that the primary purpose of the a dying victim about his assailant were not testimonial interrogation is to enable police assistance to meet an because the circumstances objectively indicated that ongoing emergency. They are testimonial *2180 when the conversation was primarily aimed at quelling an the circumstances objectively indicate that there is no ongoing emergency, not establishing evidence for the such ongoing emergency, and that the primary purpose prosecution. Because the relevant statements were made of the interrogation is to establish or prove past events to law enforcement officers, we again declined to decide potentially relevant to later criminal prosecution.” Id., at whether the same analysis applies to statements made to 822,126 S.Ct, 2266. Because the cases involved statements individuals other than the police. See id., at 357, n. 3, 131 to law enforcement officers, we reserved the question S.Ct. 1143. whether similar statements to individuals other than law enforcement officers would raise similar issues under the [5] |6| [7] Thus, under our precedents, a statement Confrontation Clause. See id., at 823, n. 2,126 S.Ct. 2266. cannot fall within the Confrontation Clause unless its primary purpose was testimonial. “Where no such llj In Michigan v. Bryant, 562 U.S. 344, 131 S.Ct. 1143. primary purpose exists, the admissibility of a statement is 179 L.Ed.2d 93 (2011), we further expounded on the the concern of state and federal rules of evidence, not the primary purpose test. The inquiry, we emphasized, must Confrontation Clause.” Id., at 359, 131 S.Ct. 1143. But consider “all of the relevant circumstances.” Id., at 369, that does not mean that the Confrontation Clause bars 131 S.Ct. 1143. And we reiterated our view in Davis every statement that satisfies the “primary purpose” test. that, when “the primary purpose of an interrogation is We have recognized that the Confrontation Clause does to respond to an ‘ongoing emergency,’ its purpose is not not prohibit the introduction of out-of-court statements to create a record for trial and thus is not within the that would have been admissible in a criminal case at the scope of the [Confrontation] Clause.” 562 U.S., at 358,131 time of the founding. See Giles v. California. 554 U.S. S.Ct. 1143. At the same time, we noted that “there may 353, 358-359, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008); be other circumstances, aside from ongoing emergencies, Crawford, 541 U.S., at 56, n. 6, 62, 124 S.Ct. 1354. Thus, when a statement is not procured with a primary purpose the primary purpose test is a necessary, but *2181 not of creating an out-of-court substitute for trial testimony.” always sufficient, condition for the exclusion of out-of- Ibid. “[T]he existence vel non of an ongoing emergency court statements under the Confrontation Clause. is not the touchstone of the testimonial inquiry.” Id., at 374, 131 S.Ct. 1143. Instead, “whether an ongoing emergency exists is simply one factor ... that informs the B ultimate inquiry regarding the ‘primary purpose’ of an interrogation.” Id., at 366, 131 S.Ct. 1143. [8] In this case, we consider statements made to preschool teachers, not the police. We are therefore [2] [31 |4| One additional factor is “the informality presented with the question we have repeatedly reserved: of the situation and the interrogation.” Id., at 377, 131 whether statements to persons other than law enforcement S.Ct. 1143. A “formal station-house interrogation,” like officers are subject to the Confrontation Clause. Because the questioning in Crawford, is more likely to provoke at least some statements to individuals who are testimonial statements, while less formal questioning is not law enforcement officers could conceivably raise less likely to reflect a primary purpose aimed at obtaining confrontation concerns, we decline to adopt a categorical testimonial evidence against the accused. Id, at 366, 377, rule excluding them from the Sixth Amendment's reach. 131 S.Ct. 1143. And in determining whether a statement Nevertheless, such statements are much less likely to be

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testimonial than statements to law enforcement officers. And considering all the relevant circumstances here, [9] L.P.'s age fortifies our conclusion that the statements L.P.'s statements clearly were not made with the primary in question were not *2182 testimonial. Statements purpose of creating evidence for Clark's prosecution. by very young children will rarely, if ever, implicate Thus, their introduction at trial did not violate the the Confrontation Clause. Few preschool students Confrontation Clause. understand the details of our criminal justice system. Rather, “[rjesearch on children's understanding of the L.P.'s statements occurred in the context of an ongoing legal system finds that” young children “have little emergency involving suspected child abuse. When L.P.'s understanding of prosecution.” Brief for American teachers noticed his injuries, they rightly became worried Professional Society on the Abuse of Children as Amicus that the 3-year-old was the victim of serious violence. Curiae 7, and n. 5 (collecting sources). And Clark does Because the teachers needed to know whether it was not dispute those findings. Thus, it is extremely unlikely safe to release L.P. to his guardian at the end of the that a 3-year-old child in L.P.'s position would intend day, they needed to determine who might be abusing the his statements to be a substitute for trial testimony. On child. Thus, the immediate concern was to protect a the contrary, a young child in these circumstances would vulnerable child who needed help. Our holding in Bryant simply want the abuse to end, would want to protect other is instructive. As in Bryant, the emergency in this case victims, or would have no discernible purpose at all. was ongoing, and the circumstances were not entirely clear. L.P.'s teachers were not sure who had abused him As a historical matter, moreover, there is strong evidence or how best to secure his safety. Nor were they sure that statements made in circumstances similar to those whether any other children might be at risk. As a result, facing L.P. and his teachers were admissible at common their questions and L.P.'s answers were primarily aimed at law. See Lyon & LaMagna, The History of Children's identifying and ending the threat. Though not as harried, Hearsay: From Old Bailey to Post-Davir, 82 Ind. L.J. the conversation here was also similar to the 911 call in 1029, 1030 (2007); see also id., at 1041-1044 (examining Davis. The teachers' questions were meant to identify the child rape cases from 1687 to 1788); J. Langbein, The abuser in order to protect the victim from future attacks. Origins of Adversary Criminal Trial 239 (2003) (“The Whether the teachers thought that this would be done Old Bailey” court in 18th-century London “tolerated by apprehending the abuser or by some other means is flagrant hearsay in rape prosecutions involving a child irrelevant. And the circumstances in this case were unlike victim who was not competent to testify because she was the interrogation in Hammon, where the police knew the too young to appreciate the significance of her oath”). identity of the assailant and questioned the victim after And when 18th-century courts excluded statements of this shielding her from potential harm. sort, see, e.g.. King v. Brasier, 1 Leach 199, 168 Eng. Rep. 202 (K.B. 1779), they appeared to do so because There is no indication that the primary purpose of the child should have been ruled competent to testify, the conversation was to gather evidence for Clark's not because the statements were otherwise inadmissible. prosecution. On the contrary, it is clear that the first See Lyon & LaMagna, supra, at 1053-1054. It is thus objective was to protect L.P. At no point did the teachers highly doubtful that statements like L.P.'s ever would inform L.P. that his answers would be used to arrest have been understood to raise Confrontation Clause or punish his abuser. L.P. never hinted that he intended concerns. Neither Crawford nor any of the cases that it his statements to be used by the police or prosecutors. has produced has mounted evidence that the adoption And the conversation between L.P. and his teachers was of the Confrontation Clause was understood to require informal and spontaneous. The teachers asked L.P. about the exclusion of evidence that was regularly admitted in his injuries immediately upon discovering them, in the criminal cases at the time of the founding. Certainly, the informal setting of a preschool lunchroom and classroom, statements in this case are nothing like the notorious and they did so precisely as any concerned citizen would use of ex parte examination in Sir Walter Raleigh's trial talk to a child who might be the victim of abuse. This was for treason, which we have frequently identified as “the nothing like the formalized station-house questioning in principal evil at which the Confrontation Clause was Crawford or the police interrogation and battery affidavit directed.” Crawford, 541 U.S., at 50, 124 S.Ct. 1354; see in Hammon. also Bryant, 562 U.S., at 358, 131 S.Ct. 1143.

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the out-of-court statement is not available as an in­ [10] Finally, although we decline to adopt a rule that court witness, but the testimony is admissible under an statements to individuals who are not law enforcement exception to the hearsay rules and is probative of the officers are categorically outside the Sixth Amendment, defendant's guilt. The fact that the witness is unavailable the fact that L.P. was speaking to his teachers because of a different rule of evidence does not change our remains highly relevant. Courts must evaluate challenged analysis. statements in context, and part of that context is the questioner's identity. See id., at 369. 131 S.Ct. 1143. 114] Finally, Clark asks us to shift our focus from Statements made to someone who is not principally the context of L.P.'s conversation with his teachers charged with uncovering and prosecuting criminal to the jury's perception of those statements. Because, behavior are significantly less likely to be testimonial than in his view, the “jury treated L.P.'s accusation as the statements given to law enforcement officers. See, e.g., functional equivalent of testimony,” Clark argues that Giles, 554 U.S.. at 376, 128 S.Ct. 2678. It is common we must prohibit its introduction. Brief for Respondent sense that the relationship between a student and his 42. Our Confrontation Clause decisions, however, do teacher is very different from that between a citizen and not determine whether a statement is testimonial by the police. We do not ignore that reality. In light of these examining whether a jury would view the statement circumstances, the Sixth Amendment did not prohibit the as the equivalent of in-court testimony. The logic of State from introducing L.P.'s statements at trial. this argument, moreover, would lead to the conclusion that virtually all out-of-court statements offered by the prosecution are testimonial. The prosecution is unlikely to offer out-of-court statements unless they tend to support Ill the defendant's guilt, and all such statements could be [HI 112] Clark's efforts to avoid this conclusion are viewed as a substitute for in-court testimony. We have all off-base. He emphasizes Ohio's mandatory reporting never suggested, however, that the Confrontation Clause obligations, in an attempt to equate L.P.'s teachers with bars the introduction of all out-of-court statements that the police and their caring questions with *2183 official support the prosecution's case. Instead, we ask whether a interrogations. But the comparison is inapt. The teachers' statement was given with the “primary purpose of creating pressing concern was to protect L.P. and remove him from an out-of-court substitute for trial testimony.” Bryant, harm's way. Like all good teachers, they undoubtedly supra, at 358, 131 S.Ct. 1143. Here, the answer is clear: would have acted with the same purpose whether or not L.P.'s statements to his teachers were not testimonial. they had a state-law duty to report abuse. And mandatory reporting statutes alone cannot convert a conversation between a concerned teacher and her student into a IV law enforcement mission aimed primarily at gathering evidence for a prosecution. We reverse the judgment of the Supreme Court of Ohio and remand the case for further proceedings not [13] It is irrelevant that the teachers' questions and their inconsistent with this opinion. duty to report the matter had the natural tendency to result in Clark's prosecution. The statements at issue in It is so ordered. Davis and Bryant supported the defendants' convictions, and the police always have an obligation to ask questions to resolve ongoing emergencies. Yet, we held in those Justice SCALIA, with whom Justice GINSBURG joins, cases that the Confrontation Clause did not prohibit concurring in the judgment. introduction of the statements because they were not I agree with the Court's holding, and with its refusal primarily intended to be testimonial. Thus, Clark is to decide two questions quite unnecessary to that also wrong to suggest that admitting L.P.'s statements holding: what effect Ohio's mandatory-reporting law has would be fundamentally unfair given that Ohio law in transforming a private party into a state actor for does not allow incompetent children to testify. In any Confrontation Clause purposes, and whether a more Confrontation Clause case, the individual who provided permissive Confrontation Clause test—one less likely

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to hold the statements testimonial—should apply to V. fVashington. 547 U.S. 813, 822. 126 S.Ct. 2266, 165 interrogations by private actors. The statements here L.Ed.2d 224 (2006). would not be testimonial *2184 under the usual test applicable to informal police interrogation. Crawford remains the law. But when else has the categorical overruling, the thorough repudiation, of an L.P.’s primary purpose here was certainly not to invoke earlier line of cases been described as nothing more than the coercive machinery of the State against Clark. His age “adoptjing] a different approach,” ante, at 2179 —as refutes the notion that he is capable of forming such a though Crawford is only a matter of twiddle-dum twiddle- purpose. At common law, young children were generally dee preference, and the old, pre-Craw/ori/ “approach” considered incompetent to take oaths, and were therefore remains available? The author unabashedly displays his unavailable as witnesses unless the court determined the hostility to Crawford and its progeny, perhaps aggravated individual child to be competent. Lyon & LaMagna, by inability to muster the votes to overrule them. Crawford The History of Children's Hearsay: From Old Bailey to “does not rank on the [author of the opinion's] top-ten Post-Duvw, 82 Ind. L.J. 1029, 1030-1031 (2007). The list of favorite precedents—and ... the [author] could not inconsistency of L.P.'s answers—making him incompetent restrain [himself] from saying (and saying and saying) to testify here—is hardly unusual for a child of his age. so.” Harris v. Quinn, 573 U.S. ----- , ------, 134 S.Ct. And the circumstances of L.P.'s statements objectively 2618, 2652-2653, 189 L.Ed.2d 620 (2014) (KAGAN, J., indicate that even if he could, as an abstract matter, dissenting). form such a purpose, he did not. Nor did the teachers have the primary purpose of establishing facts for later But snide detractions do no harm; they are just indications prosecution. Instead, they sought to ensure that they did of motive. Dicta on legal points, however, can do harm, not deliver an abused child back into imminent harm. because though they are not binding they can mislead. Nor did the conversation have the requisite solemnity Take, for example, the opinion's statement that the necessary for testimonial statements. A 3-year-old was primary-purpose test is merely one of several heretofore asked questions by his teachers at school. That is far from unmentioned conditions (“necessary, but not always the surroundings adequate to impress upon a declarant the sufficient”) that must be satisfied before the Clause's importance of what he is testifying to. protections apply. Ante, at 2180 - 2181. That is absolutely *2185 false, and has no support in our opinions. The That is all that is necessary to decide the case, and all that Confrontation Clause categorically entitles a defendant today's judgment holds. to be confronted with the witnesses against him ; and the primary-purpose test sorts out, among the many people I write separately, however, to protest the Court's who interact with the police informally, who is acting shoveling of fresh dirt upon the Sixth Amendment right as a witness and who is not. Those who fall into the of confrontation so recently rescued from the grave in former category bear testimony, and are therefore acting Crawford v. Wa.shington. 541 U.S. 36, 124 S.Ct. 1354, as “witnesses,” subject to the right of confrontation. There 158 L.Ed.2d 177 (2004). For several decades before that are no other mysterious requirements that the Court case, we had been allowing hearsay statements to be declines to name. admitted against a criminal defendant if they bore “ ‘indicia of reliability.’ ” Ohio v. Roberts, 448 U.S. 56, 66, The opinion asserts that future defendants, and future 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Prosecutors, past Confrontation Clause majorities, must provide “evidence and present, love that flabby test. Crawford sought to that the adoption of the Confrontation Clause was bring our application of the Confrontation Clause back to understood to require the exclusion of evidence that was its original meaning, which was to exclude unconfronted regularly admitted in criminal cases at the time of the statements made by witnesses—i.e., statements that were founding.” Ante, at 2182. This dictum gets the burden testimonial. 541 U.S., at 51, 124 S.Ct. 1354. We defined precisely backwards—which is of course precisely the testimony as a “ ‘solemn declaration or affirmation made idea. Defendants may invoke their Confrontation Clause for the purpose of establishing or proving some fact,’ ” rights once they have established that the state seeks to ibid.—in the context of the Confrontation Clause, a fact introduce testimonial evidence against them in a criminal “potentially relevant to later criminal prosecution,” Davis case without unavailability of the witness and a previous

WESTLAW © 2017 Thomson Reuters, No claim to original U.S. Government Works. 10 Ohio V. Clark, 135 S.Ct. 2173 (2015) 192 L.Ed.2d 306, 83 USLW 4484, 15 Cal. Daily Op. Serv. 6248...

opportunity to cross-examine. The burden is upon the here. Nor would I leave the resolution of this important prosecutor who seeks to introduce evidence over this question in doubt. bar to prove a long-established practice of introducing specific kinds of evidence, such as dying declarations, *2186 Instead, I would use the same test for statements see Crawford, supra, at 56, n. 6, 124 S.Ct. 1354, for to private persons that I have employed for statements which cross-examination was not typically necessary. A to agents of law enforcement, assessing whether those suspicious mind (or even one that is merely not naive) statements bear sufficient indicia of solemnity to qualify might regard this distortion as the first step in an attempt as testimonial. See Crawford, supra, at 51, 124 S.Ct. to smuggle longstanding hearsay exceptions back into 1354; Davis v. Washington, 547 U.S. 813, 836-837, the Confrontation Clause—in other words, an attempt to 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) (THOMAS, return to Ohio v. Roberts. J., concurring in judgment in part and dissenting in part). This test is grounded in the history of the But the good news is that there are evidently not the common-law right to confrontation, which “developed votes to return to that halcyon era for prosecutors; and to target particular practices that occurred under the that dicta, even calculated dicta, are nothing but dicta. English bail and committal statutes passed during the They are enough, however, combined with the peculiar reign of Queen Mary, namely, the civil-law mode of phenomenon of a Supreme Court opinion's aggressive criminal procedure, and particularly its use of ex parte hostility to precedent that it purports to be applying, to examinations as evidence against the accused.” Id., at prevent my joining the writing for the Court. I concur only 835, 126 S.Ct. 2266 (internal quotation marks omitted). in the judgment. Reading the Confrontation Clause in light of this history, we have interpreted the accused's right to confront “the witnesses against him,” U.S. Const., Arndt. 6, as the right to confront those who “bear testimony” Justice THOM AS, concurring in the judgment. against him, Crawford. 541 U.S., at 51, 124 S.Ct. 1354 I agree with the Court that Ohio mandatory reporters (relying on the ordinary meaning of “witness”). And are not agents of law enforcement, that statements because “[tjestimony ... is ... a solemn declaration or made to private persons or by very young children will affirmation made for the purpose of establishing or rarely implicate the Confrontation Clause, and that the proving some fact,” ibid, (internal quotation marks and admission of the statements at issue here did not implicate brackets omitted), an analysis of statements under the that constitutional provision. I nonetheless cannot join Clause must turn in part on their solemnity, Davis, supra, the majority's analysis. In the decade since we first sought at 836. 126 S.Ct. 2266 (opinion of THOMAS, J.). to return to the original meaning of the Confrontation Clause, see Crawfordr. Washington, 541 U.S. 36,124 S.Ct. I have identified several categories of extrajudicial 1354, 158 L.Ed.2d 177 (2004), we have carefully reserved statements that bear sufficient indicia of solemnity to consideration of that Clause's application to statements fall within the original meaning of testimony. Statements made to private persons for a case in which it was squarely “contained in formalized testimonial materials, such as presented. See, e.g., Michigan r. Bryant, 562 U.S. 344, 357, affidavits, depositions, prior testimony, or confessions” n. 3, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011). easily qualify. White v. Illinois, 502 U.S. 346, 365,112 S.Ct. 736, 1 16 L.Ed.2d 848 (1992) (THOMAS, J., concurring This is that case; yet the majority does not offer clear in part and concurring in judgment). And statements not guidance on the subject, declaring only that “the primary contained in such materials may still qualify if they were purpose test is a necessary, but not always sufficient, obtained in “a formalized dialogue”; after the issuance of condition” for a statement to fall within the scope of the the warnings required by Miranda r. Arizona, 384 U.S. Confrontation Clause. Ante, at 2180 - 2181. The primary 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); while in police purpose test, however, is just as much “an exercise in custody; or in an attempt to evade confrontation. Davis, fiction ... disconnected from history” for statements made supra, at 840. 126 S.Ct. 2266 (opinion of THOMAS, to private persons as it is for statements made to agents of J.); see also Bryant. 562 U.S., at 379, 131 S.Ct. 1143 law enforcement, if not more so. See Bryant, supra, at 379, (same) (summarizing and applying test). That several of 131 S.Ct. 1143 (THOMAS, J., concurring in judgment) these factors seem inherently inapplicable to statements (internal quotation marks omitted). I would not apply it

WESTLAW © 2017 Thomson Reuters. No claim to original U.S. Government Works. 11 Ohio V. Clark, 135 S.Ct. 2173 (2015) 192 L.Ed.2cl 306, 83 USLW 4484, 15 Cal. Daily Op. Serv. 6248... made to private persons does not mean that the test is that the prosecution would have produced L.P. to testify unsuitable for analyzing such statements. All it means is had he been deemed competent to do so. His statements that statements made to private persons rarely resemble bear no “resemblance to the historical practices that the historical abuses that the common-law right to the Confrontation Clause aimed to eliminate.” Ibid. The confrontation developed to address, and it is those admission of L.P.'s extrajudicial statements thus does not practices that the test is designed to identify. implicate the Confrontation Clause.

Here, L.P.'s statements do not bear sufficient indicia I respectfully concur in the judgment. of solemnity to qualify as testimonial. They were neither contained in formalized testimonial materials nor All Citations obtained as the result of a formalized dialogue initiated by police. Instead, they were elicited during questioning 135 S.Ct. 2173, 192 L.Ed.2d 306, 83 USLW 4484, 15 Cal. by L.P.'s teachers at his preschool. Nor is there any Daily Op. Serv. 6248,2015 Daily Journal D.A.R. 6760,25 indication that L.P.'s statements were offered at trial to Fla. L. Weekly Fed. S 366 evade confrontation. To the contrary, the record suggests

Footnotes * The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co.. 200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499. 1 Like the Ohio courts, we identify Clark's victims and their mother by their initials. 2 In fact, the teachers and a social worker who had come to the school were reluctant to release L.P. into Clark's care after the boy identified Clark as his abuser. But after a brief “stare-down” with the social worker, Clark bolted out the door with L.P., and social services were not able to locate the children until the next day. App. 92-102,150-151.

End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.

WESTLAW © 2017 Thomson Reuters. No claim to original U.S. Government Works. 12 Colvard v. Com., 309 S.W.3d 239 (2010)

Edwards v. Commonwealth, 833 S.W.2d 842, J.M.R. V. Commonwealth of Kentucky, KeyCite Yellow Flag - Negative Treatment Distinguished by Edmonds v. Com., Ky , June 19, 2014 Cabinet for Health and Family Services, 239 309 S.W.sd 239 S.W.3d 116, and Plotnick v. Commonwealth, Supreme Court of Kentucky. 2008 WL 162881;

Fred Lee COLVARD, Appellant, FI medical professionals’ testimony that V. children identified defendant as the COMMONWEALTH of Kentucky, perpetrator of sexual abuse against them was Appellee. inadmissible hearsay;

No. 2007-SC-000477-MR. Pl admission of other hearsay testimony was I improper; March 18, 2010. I Pl admission of hearsay testimony was not As Corrected April 9, 2010. harmless; I Rehearing Denied May 20, 2010. Pl defendant’s prior attempted rape conviction was admissible to show modus operand!; and Synopsis Pl burglary instruction failed to properly Background: Defendant was convicted in correspond to statutory elements. the Circuit Court, Jefferson County, Judith E. McDonald-Burkman, J., of first-degree sodomy, first-degree rape, first-degree Reversed and remanded. burglary, and of being a second-degree persistent felony offender (PFO II). Minton, C.J., concurred in part, dissented in Defendant appealed. part, and filed statement.

Scott, J., concurred in part, dissented in part, Holdings: The Supreme Court, Venters, J., and filed opinion, in which Abramson, J., held that: joined.

1*1 the identity of the perpetrator of sexual abuse is not admissible under exception to hearsay rule for statements made for West Headnotes (17) purposes of medical treatment or diagnosis, even where a family or household member is the perpetrator of sexual abuse against a minor of that household, overruling Criminal Law WESTLAW ; 201/ nom- r-’Terr, Nona!;’:'"’ I’igin.’d U S Goveriiinen: Works. Colvard v. Com., 309 S.W.3d 239 (2010)

^Statements as to and expressions Rules of Evid., Rule 803(4). of personal injury or suffering

The identity of the perpetrator of 8 Cases that cite this headnote sexual abuse is not relevant to medical treatment or diagnosis, for purposes of exception to hearsay rule for statements made for purposes of |3| medical treatment or diagnosis, even Criminal Law where a family or household ^-Statements as to and expressions member is the perpetrator of sexual of personal injury or suffering abuse against a minor of that household; overruling Edwards v. Medical professionals’ testimony that children, during medical Commonwealth, 833 S.W.2d 842, J.M.R. V. Commonwealth of examination, identified defendant as Kentucky, Cabinet for Health and the perpetrator of sexual abuse Family Services, 239 S.W.3d 116, against them was not admissible and Plotnick v. Commonwealth, under hearsay rule for statements made for purposes of medical 2008 WL 162881. Rules of Evid., Rule 803(4). treatment or diagnosis, even though defendant lived in same apartment complex with children and had 11 Cases that cite this headnote recently been engaged to marry the children’s grandmother; regardless of whether medical professionals might use the information to protect the children from further abuse, the |2| Criminal Law statements identifying defendant ^Statements as to and expressions were not motivated by children’s of personal injury or suffering desire for effective treatment. Rules of Evid., Rule 803(4). Admissibility of a statement under hearsay rule for statements made for purposes of medical treatment or 7 Cases that cite this headnote diagnosis is governed by a two-part test: (1) the declarant’s motive in making the statement must be consistent with the purposes of |4| promoting treatment, and (2) the Criminal Law ^-Statements as to and expressions content of the statement must be of personal injury or suffering such as is reasonably relied on by a physician in treatment or diagnosis. Rule that a child’s identification of WESTLAW © 2017 Thomson Reuters. No claim to otiginal U S. Government Works. Colvard v. Com., 309 S.W.Sd 239 (2010)

the perpetrator of sexual abuse to a uncle asked child who touched her medical professional is not was not admissible in sexual abuse admissible under exception to prosecution under rule governing hearsay rule for statements made for prior statements of witnesses; while purposes of medical treatment or child did testify at trial, child was diagnosis does not impede or limit not examined concerning the the ability of medical personnel to statement, there was no proper report suspected child abuse, foundation laid, and uncle testified including information regarding the prior to child. Rules of Evid., Rule identity of a suspected abuser to the 801A(a)(3). appropriate authorities. Rules of Evid., Rule 803(4). 1 Cases that cite this headnote

12 Cases that cite this headnote

f Witnesses ^former statements corresponding |5| Criminal Law with testimony «^ Acts or conduct Defendant’s question to children’s Child’s nonverbal conduct in mother in sexual abuse prosecution, pointing at defendant following seeking to impeach mother by asking uncle’s asking child who touched her whether she had used vulgar was the equivalent of a verbal language in asking the children assertion by child that defendant regarding whether defendant had touched her, and thus the nonverbal raped them, did not open the door to assertion fell under the normal mother’s testimony that child’s hearsay rules for the admission of report of abuse to a medical evidence. Rules of Evid., Rule 801. professional had used “children’s” terminology, as opposed to the vulgar terminology allegedly used Cases that cite this headnote by mother; fact that child used children’s terminology did not affect credibility of mother’s denial that she asked the children a question using vulgar terminology, and |6| Criminal Law mother’s repeating medical ^-Identity professional’s hearsay statement improperly bolstered children’s Child’s uncle’s hearsay testimony that child identified defendant when WESTLAW © 2017 Thomson Reuters, No claim to original U S. Government Works, Colvard v. Com., 309 S.W.Sd 239 (2010)

testimony. A non-constitutional evidentiary error may be deemed harmless if the reviewing court can say with fair Cases that cite this headnote assurance that the judgment was not substantially swayed by the error. Rules Crim.Proc., Rule 9.24.

|8l Criminal Law 2 Cases that cite this headnote v=Statements as to and expressions of personal injury or suffering

Social worker’s testimony, that children made disclosures of sexual |iil Criminal Law abuse to her during interviews and ^Prej Lidice to rights of party as identified defendant as the ground of review perpetrator, was hearsay and was not admissible in rape prosecution. The harmless error inquiry is not simply whether there was enough evidence to support the result, apart Cases that cite this headnote from the phase affected by the error; it is rather, even so, whether the error itself had substantial influence, and if so, or if one is left in grave doubt, the conviction cannot stand. |9| Criminal Law Rules Crim.Proc., Rule 9.24. ^-Statements as to and expressions of personal injury or suffering 2 Cases that cite this headnote There is no recognized exception to the hearsay rule for social workers or the results of their investigations.

|12| Criminal Law 1 Cases that cite this headnote ^Hearsay

Improper admission of hearsay testimony in child rape prosecution, including medical professionals’ |10| Criminal Law hearsay testimony identifying ^-Prejudice to rights of party as defendant as the perpetrator, was not ground of review harmless error; there was no DNA or other physical evidence linking WESTLAW 2017 Thomson Reuters No claim to original U.S. Government Works. 4 Colvard v. Com, 309 S.W.3d 239 (2010)

defendant to the crimes, and ♦-Unanimity as to facts, conduct, improper hearsay evidence vouching methods, or theories that children had previously identified defendant as the A jury instruction which presents an perpetrator multiplied the bolstering alternative theory of guilt is proper effect and resulted in a parade of and does not violate the witnesses vouching for the constitutional requirement of jury Commonwealth’s theory of the case. unanimity if every alternate theory contained in the instruction was reasonably supported by evidence Cases that cite this headnote presented at trial. Const. § 7.

Cases that cite this headnote

h’l Criminal Law ♦^Similar means or method; modus operand! 0®' Criminal Law Defendant’s prior conviction for ♦-Requisites and sufficiency attempting to rape a ten-year old child was sufficiently similar to While alternative theories of charged crimes to be admissible to criminal liability may properly be demonstrate a modus operand! in combined in a single instruction, the prosecution for child rape; offenses instruction must accurately present involved prepubescent girls, the elements of each alternative defendant knew victims and gained theory. access to their homes by romantic involvement with an adult female in the household, victims were quietly Cases that cite this headnote assaulted while others were in the home, and sexual acts were of brief duration and involved only partial vaginal and anal penetration. Rules Burglary of Evid., Rule 404(b). ♦-Instructions

Cases that cite this headnote Jury instruction that defendant could be found guilty of first degree burglary if, among the other elements, he “threatened to kill the victim’s mother,” did not properly Criminal Law correspond to elements of burglary WESTLAW © 2017 Thomson Reuters. No claim to original U.S. Government Works. 5 Colvard v. Com., 309 S.W.3d 239 (2010)

Statute which requires the jury to Counsel for Appellee. find, not simply a threat to kill another, but a threat to use a deadly Opinion weapon against another person. KRS 511.020(l)(c). Opinion of the Court by Justice VENTERS.

Cases that cite this headnote Appellant, Fred Colvard, was convicted by a Jefferson Circuit Court jury of one count of first-degree sodomy, two counts of first-degree rape, one count of first-degree burglary, and of being a second-degree Infants persistent felony offender (PFO II). For ^Carnal knowledge; rape and these crimes. Appellant was sentenced to sodomy life imprisonment. Appellant now appeals to Sex Offenses this Court as a matter of right. Ky. Const. § «~Sex offenses against minors in 110. general Sex Offenses Among other things, Appellant argues on o-Identity of accused appeal that certain testimony from medical personnel was improperly admitted through Child victims’ testimony describing the hearsay exception under KRE 803(4). the alleged sexual assaults and Because we find that our previous identifying defendant as the interpretation of the hearsay exception for perpetrator was sufficient to support “statements for purposes of medical convictions for sodomy and rape. treatment or diagnosis” was too broad, we find that the testimony was inappropriate. In addition, several other hearsay statements Cases that cite this headnote from other witnesses were improperly admitted. Because, in combination, the errors were not harmless, we reverse Appellant’s conviction and remand this matter for a new trial. We will address Appellant’s other arguments which may Attorneys and Law Firms arise in his new trial to provide guidance to *242 Cicely Jaracz Lambert, Assistant the trial court. Appellate Defender, Louisville, KY, Counsel for Appellant.

Jack Conway Attorney General, Julie Scott FACTUAL AND PROCEDURAL Jemigan, Assistant Attorney General, Office BACKGROUND of the Attorney General, Frankfort, KY,

WESTLAW 2017 Thomson Reuters, No claim to original U S. Government Works. Colvard v. Com., 309 S.W.3d 239 (2010)

On March 2, 2006, Appellant allegedly IMPROPERLY ADMITTED UNDER KRE sexually assaulted two girls, D.J. and D.Y., 803(4); EDWARDS V. COMMONWEALTH in their bedroom. D.J. and D.Y. were six and IS OVERRULED seven years old, respectively, at the time of the events. Appellant knew the children Jennifer Polk, Dr. Cole Condra, and Dr. Lisa because not only did he live in the same Pfitzer are medical personnel who testified apartment complex as them, but just a few at trial that the victims identified *243 months before, he was engaged to marry Colvard as the perpetrator of the crimes their grandmother. The grandmother ended committed against them. Because the the engagement when she learned that testimony of each of these medical Appellant was convicted of attempting to personnel implicates KRE 803(4)' and the rape a ten-year-old girl in 1994. ongoing viability of the extension of that rule created in Edwards v. Commonwealth, When D.J. and D.Y. told their mother that 833 S.W.2d 842 (Ky.l992) (overruled on they had just been sexually assaulted by other grounds by B.B. v. Commonwealth, Appellant, she immediately reported it to the 226 S.W.3d 47 (Ky.2007)), we consider authorities. The girls were then medically Colvard’s allegations of error as it relates to examined and interviewed by several these medical witnesses together. medical professionals. The medical examinations turned up no DNA or other KRE 803 provides in pertinent part: “The following are not excluded by the hearsay rules ... (4) Statements for physical evidence connecting Appellant to purposes of medical diagnosis or treatment. Statements the crime. However, the examinations were made for purposes of medical diagnosis or treatment not inconsistent with the girls’ allegation of and describing medical history, or past or present symptoms, pain, or sensations, or the inception or sexual assault. general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.” A jury trial was conducted and the jury found Appellant guilty of two counts of first-degree rape, one count of first-degree sodomy, and one count of first-degree burglary. He was also convicted of PFO II A. Jennifer Polk and the jury recommended sentences of Polk, an EMT who responded to the twenty years for the burglary and life on emergency call, was called by the each of the sex offenses. Those sentences Commonwealth to testify about the events of were all enhanced to life imprisonment as a March 2, 2006. Over Colvard’s objection, result of the PFO II conviction. Additional Polk was allowed to testify that the first facts will be developed further below, as child to whom she spoke said that “Fred needed. from number seven [Appellant] ... stuck his ‘dick’ in her.” Polk also testified that the second child to whom she spoke told her, in substance, that Appellant had “hurt” her anus. Appellant timely objected to the 1. HEARS A Y TESTIMONY WAS testimony, but the trial court overruled the WESTLAW © 2017 Thomson Reuters. No claim to original U S Government Works Colvard v. Com, 309 S.W.Sd 239 (2010) objection upon the basis that it was as a result of sexual abuse allegations made admissible under KRE 803(4). against “a neighbor” named “Fred” and that the allegations involved vaginal and anal penetration. Dr. Pfitzer also testified that D.J.’s mother reported that D.J. told her that B. Dr. Condra ‘Fred was f* * *fing” us.” Appellant argues that Dr. Condra improperly gave testimony about statements DJ made to the triage nurse at the hospital. Dr. Condra testified from notes made by the nurse on D. KRE 803(4) and Edwards v. March 2, 2006, when the children were Commonwealth initially admitted into the hospital for I’I As previously noted, the testimony of evaluation. Among other things, Dr. Condra these medical personnel implicates KRE testified that D.J. told the triage nurse that 803(4), the medical diagnosis exception to Appellant sexually abused her. He also the hearsay rule. KRE 803(4) provides that testified that D.J. told the nurse that “Fred “[sjtatements made for purposes of medical has been f* * *ing her, putting his weenie in treatment or diagnosis and describing her private parts.” medical history, or past or present symptoms, pain, or sensations, or the Dr. Condra also testified that D.J. and D.Y. inception or general character of the cause informed him that they were sexually or external source thereof insofar as assaulted that day “and over the past reasonably pertinent to treatment or months.”^ diagnosis” *244 are not excluded by the hearsay rule even though the declarant is Based upon this testimony Appellant moved for a available as a witness. However, the general mistrial for failure of the Commonwealth to give notice rule is that the identity of the perpetrator is of its intent to introduce prior acts pursuant to KRE 404(c). The motion was denied. not relevant to treatment or diagnosis. Souder v. Commonwealth, 719 S.W.2d 730, 735 (Ky.l986) (overruled on other grounds byB.B., 226 S.W.3dat47).

C. Dr. Pfitzer However, in Edwards, this Court recognized Appellant argues that Dr. Pfitzer, a treating an exception to the identification rule in pediatrician providing follow-up cases where a family or household member examination and treatment to D.Y. and D.J., is the perpetrator of sexual abuse against a should not have been permitted to testify as minor of that household. See also J.M.R. v. to the medical history provided by G.W., the Commonwealth of Kentucky, Cabinet for girls’ mother. Appellant timely objected to Health and Family Services, 239 S.W.3d the evidence, but his objection was 116 (Ky.App.2OO7) (applying exception). In overruled. Edwards, we relied on United States v. Renville, 779 F.2d 430 (8th Cir.1985), as Dr. Pfitzer testified that she saw the children persuasive authority for the family, or

WESTLAW © 2017 Thomson Reuters. No claim to original U.S, Government Works, Colvard v. Com, 309 S.W.Sd 239 (2010) household member, exception to the general testimony about the origin of the children’s rule. Therein, we acknowledged: injuries to be properly admitted under KRE 803(4) as statements reasonably pertinent to In Renville, the Court made this exception D.J.’s and D.Y.’s treatment or diagnosis. to the general rule that physicians rarely have reason to rely on statements of Upon reconsideration of the plain language identity because of two important aspects of KRE 803(4) and its underlying purpose, involved in the case: (1) the physician we have come to the view that the was not merely diagnosing and treating identification exception we adopted in the child/patient for physical injuries but Edwards and the Court of Appeals applied psychological injuries as well, and (2) the in J.M.R. were based upon an ill-advised and abuser was a family, household member. unsound extension of a traditional exception to the hearsay rule. We accordingly overrule The physician in that case testified that he Edwards and J.M.R. was treating the child for her emotional and physical trauma. He also said that the The hearsay rule developed over hundreds identity of the abuser was extremely of years of Anglo-American experience in important to him in helping the child jury trials. That jurisprudential experience work through her problems. The identity taught that statements of witnesses repeating was also particularly important if the what they had heard from others out of court abuser lived with the child, because the was inherently unreliable and unworthy of abuse would likely continue as long as the belief. To protect the integrity of the trial child remained in the household with the and its truth—finding mission, such abuser. out-of-court statements were forbidden. We also learned, however, that certain kinds of Edwards, 833 S.W.2d at 844 (citing out-of-court statements, because of the Renville, 779 F.2d at 438). circumstances in which they were uttered, were highly reliable. The Commonwealth, citing the Court of Appeals’ unpublished opinion Plotnick v. [Hearsay evidence] was Commonwealth, No.2007—CA—000160—MR, later excluded for lack of 2008 WL 162881 (Ky.App. Jan. 18, 2008), oath and argues that this exception applies since the cross-examination, two may have a children considered Appellant devices for assuring member of the family or household, as trustworthiness, of which Appellant had only recently ended his the latter is primary and relationship with their grandmother. *245 came finally to be Therefore, if Appellant is treated as a family controlling. Therefore, the or household member, and the perpetrator’s hearsay rule and its identity is necessary for purposes of medical exceptions in outline, treatment, then the Edwards exception to the though not in detail, form general rule would apply, allowing Polk’s a logically coherent whole.

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Each exception is justified, statements “made for purposes of medical for the hearsay received diagnosis or treatment and describing ... thereunder was uttered present symptoms, pain, or sensations, or with attendant conditions the inception or general character of the which furnish a sufficient cause or external source thereof insofar as guaranty of its reasonably pertinent to diagnosis or trustworthiness to enable treatment.” This exception to the hearsay the jury to value it. rule is premised on the notion that a declarant seeking treatment “has a selfish See Edmund M. Morgan and John motive to be truthful” because “the MacArthur Maguire, Looking Backward and effectiveness of medical treatment Forward at Evidence, 50 Harv. L.Rev. 909, depends upon the accuracy of the 920-921 (1937). information provided.” 5 Jack B. Weinstein & Margaret A. Berger, Among the several exceptions to the hearsay Weinstein’s Federal Evidence § 803.06[l] rule that developed is the one now codified (Joseph M. McLaughlin, ed., 2d ed.2004); as KRE 803(4), “statements for purposes of see Morgan v. Foretich, 846 F.2d 941, medical treatment or diagnosis.” 949 (4th Cir.1988). Admissibility of a statement pursuant to Rule 803(4) is We know that an ill or injured person governed by a two-part test: “(1) the seeking to be healed or cured is ordinarily declarant’s motive in making the highly motivated to give truthful statement must be consistent with the information to the physician or medical purposes of promoting treatment; and, (2) provider treating that illness or injury. The the content of the statement must be such essential element that lends credence to the as is reasonably relied on by a physician statement is that the patient, the “declarant” in treatment or diagnosis.” Morgan, 846 in hearsay law parlance, believes that the F.2d at 949. doctor must have that information to render effective treatment. The doctor’s actual (internal quotation marks & footnote need, use, or reliance upon the declarant’s omitted). information is less meaningful than the declarant’s belief that the information is Hence, we except from the hearsay rule essential to effective treatment. The statements made by a patient to medical declarant’s belief makes the out-of-court personnel for the purpose of medical statement inherently trustworthy. treatment or diagnosis. In the Edwards case, we enlarged that exception to include '21 As expressed in Willingham v. Crooke, statements of a patient identifying the 412 F.3d 553, 561-562 (4th Cir.2005): perpetrator of sexual abuse when that perpetrator is a member of the family or Rule 803(4) of the Federal Rules of household of the victim, not because the Evidence [the federal counterpart of KRE utterance of the statement was motivated by 803(4) ] allows the admission of hearsay the victim’s desire for effective treatment,

WESTLAW © 2017 Thomson Reiters. No claun to original U S Government Works. 10 Colvard v. Com., 309 S.W.3d 239 (2010) but because the medical professional might self-survival dictates revealing even use that information to protect the victim embarrassing truth to avoid the risk of from further abuse by a member of the the wrong medicine or the needless victims family or household. Edwards, 833 operation. Presupposing a declarant S.W.2d at 844. In so doing, we failed to conscious of the probable consequences recognize that it is the patient’s desire for of his assertions, the imperative to treatment, not the doctor’s duty to treat, that speak truthfully is not nearly so strong gives credibility to the patient’s out-of-court when the anticipated result is a social statement. There is no inherent disposition. The temptation to influence trustworthiness to be found in a hearsay the result may, indeed, run in quite the statement identifying the perpetrator *246 opposite direction. Truthful answers as when that statement did not arise from the to the identity of its abuser may well patient’s desire for effective medical wrench a child from the reassuring treatment. As Professor Lawson notes, in presence of its mother or father or both. Section 8.55(6) of the Kentucky Evidence It is highly unlikely that there operates Law Handbook (4th ed.2003) (quoting in an infant declarant a compelling Mueller & Kirkpatrick, Federal Evidence, § desire to bring about such a result. 442 (2d ed. 1994)): “(T)his expansion [the Cassidy v. State, 74 Md.App. 1, 536 Edwards/Renville decisions] of the A.2d 666, 684 (1988), cert, denied, 312 exception is troubling ... admitting such Md. 602, 541 A.2d 965 (1988). statements because doctors rely on them in diagnosis is highly questionable.” Moreover, many commentators have expressed concern that in the course of The Renville rule has also received other laudable efforts to combat child abuse, scholarly criticism. State v. Jones, 625 So.2d prosecutors, courts, and others have 821, 825 (Fla. 1993), for example, sets forth occasionally overreached. See, e.g., learned authorities which criticize the rule Michael H. Graham, The Confrontation and the reasonings therefor: Clause, the Hearsay Rule, and Child Sexual Abuse Prosecutions: The State of However, the trend to adopt a the Relationship, 72 Minn.L.Rev. 523, Renville—type analysis also has been 529 n. 26 (1988) (“The successful harshly criticized. As the Maryland Court prosecution of child sexual abuse cases of Special Appeals noted in a scholarly should not be permitted to distort the opinion: hearsay exception for statements for medical diagnosis or treatment. Almost In stretching outward their list of a anything is relevant to the diagnosis or physician’s responsibilities and in treatment of psychological well being, pushing forward with their definition of and far too many untrustworthy “medical treatment and diagnosis,” the statements are relevant to preventing expansionists have left behind, repetition of the abuse.”); Robert P. abandoned and forgotten, the state of Mosteller, Child Sexual Abuse and mind of the declarant.... Physical Statements for the Purpose of Medical

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Diagnosis or Treatment, 61 N.C.L.Rev. construction of the medical treatment 257, 258 (1989) (Applications of medical exception to the hearsay rule.’ Moreover, diagnosis or treatment exception in child because the testimony served to bolster the abuse cases “have tended to expose the children’s testimony and the thinness of the justification for extending Commonwealth’s theory of the case, the the exception to statements made without testimony was highly prejudicial. As further any view toward treatment.”) discussed below, in combination with other inadmissible hearsay statements let into trial, As reflected by the foregoing discussion, reversible error occurred. we have carefully considered the Renville rule, its merits and de merits, and now Even under the Renville rule it would have been error to conclude that our adoption of the rule was have admitted Polk’s testimony. Polk, as an EMT, was treating D.J. and D.Y. for purely physieal injuries, an unwise departure from the traditional without addressing the emotional/psychologieal trauma. hearsay rule that has served our system of An emergency medical responder, unlike a treating physician ordinarily does not have the medical training, justice well for many generations. One or the expertise, to engage in, or plan for, psychological cannot reasonably conclude that the evaluation and treatment. Thus, the identity of the perpetrator is not something an EMT would reasonably statements identifying the perpetrator, such rely upon in composing a course of emergency as those at issue in this case, were made by treatment. Thus, the Edwards and Renville exception young children “for the purpose of medical was inapplicable in this instance. treatment or diagnosis.” The Renville rule is inconsistent with the plain language of KRE 803(4), and, as the above authorities explain, This opinion does not alter or limit the the *247 reliability of a child’s identification traditional hearsay exception allowing of the perpetrator of the abuse to a medical medical providers to testify to a patient’s professional contains the same tangible risks out-of-court statements as to what was done of unreliability generally inherent in all to the patient and how he or she was injured. hearsay testimony. Accordingly, Edwards, Nor, as the dissent implies, does this opinion impede or limit the ability of medical J.M.R., and other cases applying the personal to report suspected child abuse, exception to the hearsay rule are overruled. including information regarding the identity In so deciding, we do not hold that of a suspected abuser to the appropriate statements of a child victim to medical personnel identifying an abuser are always authorities. We simply state that we no longer recognize a special exception to the inadmissible. There may be circumstances in which such statements will be found to hearsay rule which allows medical providers comport with the requirements of KRE to testify in court to the hearsay statements of a victim of sexual offenses which identify 803(4) or other exceptions to the hearsay the alleged perpetrator because that rule. This, however, is not such a case. identification is not pertinent to the medical Based upon the above discussion, we treatment being provided. conclude that it was error for the trial court to have permitted Polk, Dr. Condra, and Dr. Pfitzer to testify under the Renville

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IL OTHER HEARSAY TESTIMONY In support of the statement’s admission, the Commonwealth cites us to KRE 801A(a)(3), In addition to the medical testimony hearsay Preston v. Commonwealth, 406 S.W.2d 398, discussed above, Appellant also complains 403 (Ky.l966), and our previous ruling in of hearsay statements introduced at trial Owens V. Commonwealth, 950 S.W.2d 837, through J.W., the victims’ uncle; G.W., the 839 (Ky.l997), to the effect that “once a victims’ mother; and Valleri Mason, a witness is allowed to testify that he made an children’s forensic interviewer. For the identifying statement, further proof by other reasons stated below, we conclude that each witnesses that he did in fact make it is just as of these witnesses was permitted to repeat relevant and competent as would be statements made by the children identifying defensive proof to the effect that he did not Appellant as the perpetrator, and that the make it.” (internal citations omitted). statements were not subject to any hearsay exception. KRE 801 A(a)(3) provides as follows:

Prior statements of witnesses. A statement is A. J. W.—(Victims ’ Uncle) not excluded by the |5| [6] Appellant argues the trial court erred hearsay rule, even though by permitting testimony from the victims’ the declarant is available uncle, J.W. The uncle, a prosecution as a witness, if the witness, testified that he asked D.Y. “what declarant testifies at the happened, who touched her,” and D.Y. trial or hearing and is pointed to Appellant. Appellant objected, examined concerning the claiming the testimony was hearsay, but the statement, with a trial court determined the uncle was being foundation laid as asked about what he said and saw, not what required by KRE 613, and a third-party said, and allowed him to testify the statement is:... (3) One to his recollection. of identification of a person made after KRE 801 defines a statement as: “(1) An perceiving the person. oral or written assertion; or (2) Nonverbal *248 conduct of a person, if it is intended by (emphasis added). the person as an assertion." (Emphasis added). We have no difficulty in concluding While D.Y. did testify at trial, the that D.Y.’s nonverbal conduct pointing at Commonwealth fails to cite us to D.Y.’s Appellant following J.W.’s question was the testimony wherein she was “examined equivalent of a verbal assertion by D.Y. that concerning the statement” she made to her “Fred Colvard touched me.” Thus, the uncle, and our review of the testimony nonverbal assertion falls under the normal discloses no such examination of the child. hearsay rules for the admission of evidence. Nor do we find compliance with the foundation requirements contained in KRE WESTLAW © 2017 Thomson Reuters. No claim to origina I U.S. Government Works, 13 Colvard v. Com., 309 S.W.3d 239 (2010)

613. Further, the uncle testified prior to D.Y. had with the children, we fail to perceive Accordingly, the elements for admissibility how that would have opened the door for the under the rule are not met, and the uncle’s mother to repeat D.Y.’s statement to Polk. testimony relating the statement was Because D.Y. used children’s terminology admitted in error. does not impeach the mother’s denial that she asked the children a question using vulgar terminology. Moreover, the purported impeachment was impeachment on a B. G.W.—(Victims’Mother) collateral matter that permitted a hearsay FI At trial. Appellant asked the children’s statement not subject to an exception *249 mother on cross-examination whether she implicating Appellant as guilty of the had asked the children “Did he put his dick charges to be heard by the jury. in you?” The apparent purpose of the question was to impeach the mother by The mother’s questioning of the children is portraying her as vulgar. Appellant then had too attenuated from D.Y.’s statement to Polk the mother read a report prepared by Polk for questioning concerning the former to that stated that the mother had, in fact, asked have opened the door to the latter. We the children that question. discern no other hearsay exception which would have permitted the statement to be On redirect, the Commonwealth attempted admitted, and accordingly conclude that it to ask the mother about a statement made by was admitted in error. D.Y. to Polk to the effect that Appellant “took his weenie out of his zipper and put it in her, but not all the way.” The Commonwealth first attempted to argue that C. Valleri Mason the statement was admissible as a statement Lastly, Appellant objects to various made for medical diagnosis under KRE statements made by Valleri Mason, a 804(a) as extended under Edwards. The trial forensic interviewer for Family and Children court ultimately ruled that the question and First.'' Mason, a self-described child answer could come in for the purpose of interview specialist, interviewed D.Y. and showing that the children used “children’s” D.J. the day after the reported assault and terminology as opposed to the vulgar testified about that interview at trial. She terminology allegedly used by the mother. testified that D.Y. and D.J. made disclosures of sexual abuse and that they circled Appellant now claims that allowing the anatomically correct drawings indicating mother to so testify improperly bolstered the where they had been violated. In addition, victims’ testimony. We agree. she testified to the following discussion she had with D.J.: While Appellant’s inquiry of the mother about her question to the children opened Appellant also objects to Mason's testimony that D.J. the door to further inquiry regarding that stayed on task better, followed questioning, and was less easily distracted than D.Y., her older sister; her event, and perhaps other conversations she testimony that she had not testified as a witness in court

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for each interview she has done, because not all cases III. THE HEARSAY ERRORS WERE NOT go to court; and her testimony that she does not make HARMLESS recommendations to the prosecutor, that some cases settle, and sometimes the touching alleged is not illegal or improper touching. |ioi I’ll RCr 9 24 requires us to disregard an error if it is harmless. A non-constitutional evidentiary error may be deemed harmless if the reviewing court can say with fair You told me that Fred, that he put his assurance that the judgment was not peanuts [D.J.’s term for penis] in you. She substantially swayed by the error. Kotteakos said, “Yeah.” I said, well can you show V. United States, 328 U.S. 750, 66 S.Ct. me on here. Does this boy, does he have 1239, 90 L.Ed. 1557 (1946). The inquiry is peanuts? She said, “yes”.... I asked her to not simply “whether there was enough circle where the peanuts are on that boy [evidence] to support the result, apart from and she circled the penis. the phase affected by the error. It is rather, I’' Though Mason’s title is that of a “forensic even so, whether the error itself had interviewer,” she is, in effect, a social substantial influence. If so, or if one is left in worker. “It is well-settled that ‘[t]here is no grave doubt, the conviction cannot stand.” recognized exception to the hearsay rule for Id. at 765, 66 S.Ct. 1239; Winstead v. social workers or the results of their Commonwealth, 283 S.W.3d 678, 688—89 investigations.’ ” B.B., 226 S.W.Sd at 51. It (Ky.2009). follows that there is no hearsay exception which would allow Mason to testify to the *250 02l In light of the lack of DNA or other children’s identification of Appellant as physical evidence linking Appellant to the having sexually assaulted them.’ crimes, the multiple instances of hearsay testimony described above which bolster the This claim of error was not properly preserved by Commonwealth’s theory was of sufficient objection. We have factored this into our harmless error review in considering whether reversible error occurred consequence such that we cannot say with as a result of the multiple recitations of impermissible fair assurance that the judgment was not hearsay identifying Appellant as having perpetrated a sexual assault on the children. substantially swayed by the error. The improper hearsay evidence vouching that the children had previously identified Appellant As with the medical testimony, the above as the perpetrator multiplied the bolstering hearsay was prejudicial because the effect and resulted in a parade of witnesses testimony served to bolster the children’s vouching for the Commonwealth’s theory of testimony and the Commonwealth’s theory the case. of the case. As further discussed below, in combination with the medical hearsay In sum, we are persuaded that the multiple statements admitted into evidence at trial, instances of hearsay evidence bolstering the reversible error occurred. Commonwealth’s case were not harmless error. We accordingly are constrained to vacate the trial court’s judgment of conviction, and remand for a new trial.

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[t]he facts surrounding the prior misconduct must be so strikingly similar to the charged offense as to IV. EVIDENCE REGARDING create a reasonable APPELLANT’S PRIOR CONVICTION IS probability that (1) the acts ADMISSIBLE were committed by the same person, and/or (2) Appellant contends that the trial court the acts were accompanied erroneously permitted the Commonwealth to by the same mens rea. If introduce evidence that he was convicted of not, then the evidence of attempting to rape a ten-year old child in prior misconduct proves 1994. Because the issue is likely to arise only a criminal disposition again upon retrial, we address the argument and is inadmissible. on the merits. Id. (citing Commonwealth v. English, 993 At trial, the Commonwealth introduced S.W.2d 941,945 (Ky.l999)). evidence that Appellant was convicted of attempting to rape a ten-year old girl in “It is not the commonality of the crimes 1994. The victim, who is now twenty-three but the commonality of the facts years old, testified at trial. Appellant argues constituting the crimes that demonstrates that this testimony was error per KRE modus operandi So, as a prerequisite to 404(b) because the circumstances the admissibility of prior bad acts surrounding the 1994 conviction were too evidence, we now require that the dissimilar to the instant case. Generally, a proponent of the evidence to ‘demonstrate defendant’s prior bad acts are inadmissible. that there is a factual commonality However, KRE 404(b)(1) provides that between the prior bad act and the charged evidence of prior crimes or wrongs is conduct that is simultaneously similar and admissible if offered for “proof of motive, so peculiar or distinct that there is a opportunity, intent, preparation, plan, reasonable probability that the two crimes knowledge, identity, or absence of mistake were committed by the same individual.’ or accident.” As recognized in Tamme v. Thus, ‘[ajlthough it is not required that Commonwealth, 973 S.W.2d 13, 29 the facts be identical in all respects, (Ky.l998), this list of exceptions is ‘evidence of other acts of sexual deviance illustrative, not exclusive. “Among the ... must be so similar to the crime on trial non-enumerated exceptions we have as to constitute a so-called signature recognized to KRE 404(b)’s general crime.’ ” prohibition on the introduction of prior bad acts evidence is ... modus operandi” Clark Id. at 97. V. Commonwealth, 223 S.W.3d 90, 95 (Ky.2007). The modus operandi exception requires that; The circumstances of the present offenses

WESTLAW © 2017 Thomson Reuters. No claim to original U S, Government Works, 16 Colvard v. Com., 309 S.W.3d 239 (2010) are sufficiently similar to the 1994 crime to violation of KRS 511.020(1 )(b), or satisfy the standard we have established for threatened the girls with harm to their admission under KRE 404(b). *251 The mother if they told anyone about what he prior offense indicated a sexual interest in did. KRS 511.020(l)(c). We address the prepubescent girls, such as the victims here. issue because it may arise upon retrial. In both the prior crime and the current offenses, Appellant knew the victims and '*’*• Appellant argues that the instruction as gained access to their homes by his written presented alternate theories of guilt, involvement in a romantic relationship with violating his right to a unanimous verdict. A an adult female in the household. All of the jury instruction which presents an victims had second floor bedrooms and were alternative theory of guilt is proper and does quietly assaulted while others were in the not violate the requirement of unanimity home. The nature of the sexual act itself was found in Section 7 of the Kentucky similar in that each incident was of brief Constitution, if every alternate theory duration, the perpetrator said nothing to the contained in the instruction was reasonably victim during the assault, the perpetrator did supported by evidence presented at trial. not ejaculate, and avoided vaginal or anal Hayes v. Commonwealth, 625 S.W.2d 583, tearing of the victims by penetrating only 584 (Ky.l981). partially. |i5| |i6| While alternative theories of criminal Faced with those striking similarities liability may properly be combined in a between Appellant’s prior conviction and single instruction, the instruction must the current alleged crimes, the trial court did accurately present the elements of each not abuse its discretion in admitting under alternative theory. Guilt under KRS KRE 404(b) the evidence of Appellants 511.020(1 )(c) requires that one “uses or prior conviction for attempted rape. At threatens the use of a dangerous instrument retrial, should the same facts be developed, against any person who is not a participant the trial court will be well within its in the crime.” The corresponding instruction discretion to admit evidence regarding given by the trial court stated that Appellant Appellant’s prior conviction. could be found guilty of first degree burglary if, among the other elements, he “threatened to kill the victim’s mother, [G.W.].” It is clear that the instruction does not accurately reflect the requirement of the V. THE BURGLARY INSTRUCTION statute. If upon retrial, the Commonwealth GIVEN TO THE JURY WAS ERRONEOUS pursues a conviction on the alternate theories of liability under KRS Finally Appellant argues that the jury 511.020(1 )(b) and (l)(c), and appropriate instruction given on the burglary charge was evidence is offered to support same, the improper because it allowed the jury to instruction must correspond to the statutory convict him of that crime if they believed he element by requiring the jury to find, not either caused physical injury to the girls, a simply a threat to kill another, but a threat to

WESTLAW ■ 2017 Thomson Reuters. No claim to original U.S. Government Works. 17 Colvard v. Com., 309 S.W.Sd 239 (2010) use a deadly weapon against another person. in part and would not allow introduction of 1994 attempted rape conviction because the facts of the current case are not sufficiently similar to satisfy KRE 404(b). He concurs in all other respects. VI. OTHER ISSUES SCOTT, J., concurs in part and dissents in Appellant also argues that prejudicial error part by separate opinion in which occurred by the trial court’s failure to strike ABRAMSON, J., joins. two jurors for cause. Because the case is reversed on other grounds and the issue is unlikely to recur upon retrial, we decline to address it. SCOTT, Justice, Concurring in Part and Dissenting in Part Opinion: h’l Appellant also argues that the evidence presented at trial was insufficient to support Although I concur with the majority on the the convictions. We disagree. The testimony other issues, I must respectfully dissent from of D.J. and D.Y. describing the events of the majority’s opinion that this Court’s March 2, 2006, and identifying Appellant as decision in Edwards v. Commonwealth, 833 the perpetrator was sufficient *252 to defeat S.W.2d 842 (Ky.l992) {overruled on other his motion for a directed verdict. grounds by B.B. v. Commonwealth, 226 Commonwealth v. Benham, 816 S.W.2d 186, S.W.3d 47 (Ky.2007)) was “based upon an 187 (Ky.l991). The trial court did not err in ill-advised and unsound extension of a overruling Appellant’s motions for directed traditional exception to the hearsay rule.” verdicts. Op. at 244.

CONCLUSION I Edwards and Renville

For the reasons stated herein, the judgment Edwards, id. at 844, was premised on United of the Jefferson Circuit Court is reversed, States V. Renville, F.2d 430 (8th and the cause is remanded for additional Cir.1985), wherein the logic of the rule as proceedings consistent with this opinion. applied to young children was explained, to wit:

Statements by a child abuse victim to a physician during an examination that the All sitting. CUNNINGHAM, NOBLE, and abuser is a member of the victim’s SCHRODER, JJ., concur. immediate household are reasonably pertinent to treatment. MINTON, C.J., concurs in part and dissents

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Statements of this kind differ from the *253 Id. at 436-438 (internal citations and statements of fault ... and properly footnotes omitted); see also J.M.R. v. excluded under our past decisions in a Commonwealth of Kentucky, Cabinet for crucial way: they are reasonably relied on Health and Family Services, 239 S.W.3d by a physician in treatment or diagnosis. 116 (Ky.App.2OO7). First, child abuse involves more than physical injury; the physician must be As our predecessor Court noted in Edwards: attentive to treating the emotional and psychological injuries which accompany In Renville, the Court made this exception this crime. The exact nature and extent of to the general rule that physicians rarely the psychological problems which ensue have reason to rely on statements of from child abuse often depend on the identity because of two important aspects identity of the abuser. The general rule involved in the case: (1) the physician banning statements of fault is premised on was not merely diagnosing and treating the assumption that the injury is purely the child/patient for physical injuries but somatic. This is evident from the psychological injuries as well, and (2) the examples put forth by the courts and abuser was a family, household member. commentators discussing the rule. In each example, the medical treatment The physician in that case testified that he contemplated was restricted to the was treating the child for her emotional physical injuries of the victim; there is no and physical trauma. He also said that the psychological component of treatment identity of the abuser was extremely which could relate to the identity of the important to him in helping the child individual at fault. Furthermore, in each work through her problems. The identity example the statement of fault is not was also particularly important if the relevant to prevention of recurrence of the abuser lived with the child, because the injury. Sexual abuse of children at home abuse would likely continue as long as the presents a wholly different situation. child remained in the household with the abuser. Second, physicians have an obligation, imposed by state law, to prevent an 833 S.W.2d at 844. And, as was noted by abused child from being returned to an the Court in J.M.R.: environment in which he or she cannot be adequately protected from recurrent The therapists testified abuse. This obligation is most immediate that the boys feared their where the abuser is a member of the stepfather would harm victim’s household, as in the present case. them in the future and that Information that the abuser is a member they did not want to of the household is therefore “reasonably reunify with their mother pertinent” to a course of treatment which because of her inability or includes removing the child from the unwillingness to leave home. their stepfather. While the

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mother contends that these applies, and that the statements were physician’s assistant inadmissible hearsay, we properly repeated D.R.’s conclude that these identification of Plotnick statements qualified as as the perpetrator. hearsay exceptions pursuant to KRE 803(4) Each of these opinions are based on because the statements common ground—that it is medically were made to therapists relevant to the health and safety of young who were determining children that their injuries not only be what happened to the recognized and treated, but also that further children and what injury prevented—i.e., their perpetrators, if treatment they needed to connected with the children’s home life, receive and the statements could be identified and reported so that the were made for the purpose child would be made safe. of receiving medical treatment. Moreover, even State v. Jones, 625 So.2d 821, 824-25 (Fla. 1993), upon which the 239 S.W.3d at 119 -120; see also Gadd v. majority bases its logic, admits that “[t]he Commonwealth, 2005-SC-000880-MR, majority of state courts confronted with this 2007 WL 858811 (Ky.2007). Gadd, in turn, issue have followed Renville and permitted led to an expansion in Plotnick v. medical personnel to testify regarding Commonwealth. 2007-CA-000160-MR, statements of identity made by child victims 2008 WL 162881 at *3 (Ky.App.2OO8), of abuse.” Id. at 824-25 (emphasis added) wherein the Court recognized: (citations omitted).

While not a “family member” in the traditional sense, D.R. called Plotnick “daddy,” D.R. had a IL The Occurrence half-sibling fathered by Plotnick, D.R. had resided The relevant events precipitating this with Plotnick at times, and analysis occurred on March 2, 2006, in the victim’s mother had an Louisville, Kentucky, when the victims, D.J. ongoing relationship with and D.Y., were six and seven years old, Plotnick from which it respectively. That day, their mother, *254 may be inferred that there G.W., met them as they got off the school would be ongoing contact bus and was told by the bus driver that the between the victim and the girls had misbehaved on the trip home. She alleged perpetrator. then took them home, ordering them to their Therefore, we believe the room and bed as punishment for their Edwards exception behavior on the bus. G.W., who was seven WESTLAW ©2017 Thomson Reuters, No claim to original U S. Government Works, 20 Colvard v. Com, 309 S.W.3d 239 (2010) months pregnant at the time, then went to The police and EMS were then called to the kitchen to fix her daughters a snack, but G.W.’s apartment. No injuries or blood was became ill and went to the bathroom. seen on the girls and EMS left the scene. G.W. and W.D. then took the girls to the During this time. Appellant entered the hospital. Dr. Condra, who saw the children home and went to D.Y. and D.J.’s bedroom. at the hospital, testified that D.J.’s D.J. testified that Appellant climbed onto the examination showed some mild redness top bunk where she was lying and used belts between the vulva and vagina, but there was to tie her arms and legs to the bed. He then no evidence of tears or bruising to the hit her in the face and raped her. Though vagina. An abnormality of the hymen was D.J. could not remember what he said. also noted. Dr. Condra concluded that D.J.’s Appellant threatened her. In addition. examination was consistent with her Appellant raped D.Y. He told D.Y. that he complaint of sexual assault and was would kill her mother and the baby her consistent with some type of penetration, mother was carrying if she told anyone what although he could not specify the nature of he was doing. Appellant then climbed out the penetration. the window. D.Y.’s examination showed some mild While in the bathroom, G.W. heard a door redness or inflammation at the opening of close and shouted to her daughters, asking the vagina, but there were no tears or who was in the house. D.Y., the older of the bruising. The history D.Y. gave Dr. Condra, two victims, then asked to come into the along with his examination, was consistent bathroom to wash herself. D.Y. initially with a sexual assault. D.Y. also had anal refused to tell her mother why, but she was dilatation of about 1.5 centimeters. Such a holding herself. On undressing her, G.W. dilatation was consistent with a penetrating noticed that D.Y.’s vagina was red, and had trauma. a strong odor. G.W. then went to her daughter’s room and noticed an odor of Vaginal swabs, anal swabs, and a vaginal feces. After briefly questioning the children, smear of the panties did not disclose the G.W. realized that both her daughters had presence of any seminal fluid or sperm cells been raped. At her insistence, both girls on D.J. or D.Y. However, an unidentified identified Appellant as their attacker. 11-inch, light brown, Caucasian head hair was found in D.Y.’s anal region that did not G.W. then looked out the window and saw belong to Appellant, an African-American. Appellant leaving. She grabbed a butcher No semen, pubic hair or body hair was knife from the kitchen, left the apartment, found on any of the bed clothing or the and confronted Appellant. Initially, he towel removed from the girl’s bedroom. denied the allegations, but became silent Rape kits taken from the children did not when G.W.’s mother, W.D., Appellant’s contain any semen that could be examined former fiancee, confronted and physically or analyzed as Appellant had not ejaculated. attacked him.

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III. The Medical Testimony young children ‘for the purpose of medical treatment or diagnosis.’ ” Op. at 246. The majority further asserts “the reliability of a child’s identification of the perpetrator of A. Dr. Condra the abuse to a medical professional contains the same tangible risk of unreliability Prior to seeing Dr. Condra at the hospital, generally inherent in all hearsay testimony.” D.J. and D.Y. were interviewed by the *255 Id. at 246-47. Outside the medical field, one triage nurse. Dr. Condra relied upon these could assert this conclusion to be valid as notes in treating the victims. The notes long as it rested “on the obvious assumption reflected that D.J. told the triage nurse that that the declarant is responding under the Appellant sexually abused her. Dr. Condra impression that [he or she] is being asked to also testified that D.J. told him and the nurse make an accusation that is not relevant to the what Appellant had been doing to her. He physician’s diagnosis or treatment.” also testified that both D.J. and D.Y. Renville, 779 F.2d at 438. However, informed him that they were sexually assaulted that day “and over the past months.” [tjhis assumption does not hold where the physician makes clear to the victim that the inquiry into the identity of the abuser is B. Dr. Pfitzer important to diagnosis and treatment, and the victim Dr. Pfitzer was a treating pediatrician who manifests such an provided follow-up examination and understanding. In such treatment to D.J. and D.Y. She testified that circumstances, the she saw the children as a result of sexual victim’s motivation to abuse allegations made against “a neighbor” speak truthfully is the named “Fred” and that the allegations same as that which insures involved vaginal and anal penetration. reliability when he recounts the chronology of events or details symptoms of somatic distress. IV. The Majority’s Departure From Edwards Id. Here, there is nothing in the record to indicate “that the child’s motive in making In discarding Edwards’ precedent of these statements to medical personnel was eighteen years, the majority asserts that it other than as a patient responding to a “cannot reasonably conclude that the physician questioning for prospective statements identifying the perpetrator, such treatment.” Id. at 439 {citing United States v. as those at issue in this case, were made by Iron Shell, 633 F.2d 77, 84 (8th Cir.1980)); WESTLAW ?') 2017 Thomson Reuters. No claim to original U S Government Works, 22 Colvard v. Com, 309 S.W.3d 239 (2010) see also U.S. v. Kappell, 418 F.3d 550, 557 evidence.” 846 F.2d 941, 949 (4th Cir. 1988) (6th Cir.2005) ( “The record supports the {citing Renville, 779 F.2d at 437). In State v. district court’s finding that ‘there is Tracy, 482 N.W.2d 675 (Iowa 1992), the sufficient indicia that these statements were Iowa Supreme Court agreed, noting that made for the purpose of medical diagnosis “[b] ecause of the nature of child sexual or treatment ... to be admissible under abuse, the only direct witnesses to the crime 803(4).’ ”). will often be the perpetrator and the victim. Consequently, much of the State’s proof will The reasoning for retaining the necessarily have to be admissible hearsay Edwards/Renville exception was also aptly statements made by the victim to relatives noted by the Supreme Court of Arkansas in and medical personnel.” Id. at 682. Thus, “ Hawkins v. State, 348 Ark. 384, 72 S.W.3d ‘[ijnformation that the abuser is a member 493, 498 (2002): of the household is therefore ‘reasonably pertinent’ to a course of treatment which R.T.’s identification of appellant as her includes removing the child from the home.’ abuser allowed Dr. Hawawini to take ” Id. at 681-82 {quoting Renville 779 F.2d at steps to prevent further abuse by her 438); see also State v. Robinson, 153 Ariz. stepfather, who was a member of her 191, 735 P.2d 801, 810 (1987) ( “[I]n child household. Additionally, R.T.’s sexual abuse cases, we therefore join the identification of appellant as her abuser growing number of jurisdictions which allowed Dr. Hawawini to take steps to recognize that statements regarding the treat the emotional and psychological abuser’s identity fall within Rule 803(4) injuries which accompanied the rape. whenever, as here, identity is relevant to Moreover, we note that based on R.T.’s proper diagnosis and treatment.”); State v. statements. Dr. Hawawini referred her to Aguallo, 318 N.C. 590, 350 S.E.2d 76, 80 a physician at Children’s Hospital who (1986) (“[I]n the context of a child sexual specialized in treating children who are abuse or child rape, a victim’s statements to sexually abused. Finally, R.T.’s a physician as to an assailant’s identity are identification of appellant as her abuser pertinent to diagnosis and treatment.”); permitted Dr. Hawawini to fulfill her Goldade v. State, 674 P.2d 721, 725 legislatively imposed duty of calling the (Wyo.1983) (“[T]he function of the court child-abuse hotline and reporting the must be to pursue the transcendent goal of crime. addressing the most pernicious social ailment which afflicts our society, family *256 And, the Court in Morgan v. Foretich, abuse, and more specifically, child abuse.”); also noted that “[w]e agree with the U.S. V. George, 291 Fed.Appx. 803, 805 (9th judgment of the Eighth Circuit [in Renville ] Cir.2008) (“The district court also did not that ‘[sjexual abuse of children at home abuse its discretion by admitting D.B.’s presents a wholly different situation’ from statement to a nurse practitioner that George that normally encountered in Rule 803(4) touched her inappropriately because the cases and that situation requires great statement was made for the purposes of a caution in excluding highly pertinent medical diagnosis.”); People of Territory of

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Guam V. Ignacio, 10 F.3d 608, 613 (9th predecessor Court for the protection of the Cir.1993) (“Thus, a child victim’s children of Kentucky and thus I must statements about the identity of the dissent. perpetrator are admissible under the medical treatment exception yvhen they are made for the purposes of medical diagnosis and treatment^} (emphasis added). ABRAMSON, J., joins.

All Citations V. Conclusion 309 S.W.3d239 For these reasons, I cannot so easily cast away an exception wisely adopted by our End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.

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Reversed and remanded in part and affirmed in part. KeyCite Yellow Flag - Negative Treatment Declined to Follow by U.S. v. Joe, 10th Cir.(N.M.), November 3, 1993 Powell, Associate Justice, United States Supreme Court 846 F.2d 941 (Retired), concurred in part and dissented in part and filed United States Court of Appeals, opinion. Fourth Circuit.

Elizabeth MORGAN, M.D., Plaintiff-Appellant, V. West Headnotes (8) Eric A. FORETICH; Vincent Foretich; Doris Foretich, Defendants-Appellees. [1] Evidence Hilary' FORETICH, an Infant who sues Right to prove specific facts Through her mother and next friend, Elizabeth Evidence MORGAN, M.D., Plaintiff-Appellant, Similar wrongful acts V. Evidence Eric A. FORETICH; Vincent Foretich; Similar transactions Doris Foretich, Defendants-Appellees. Evidence of other crimes or acts is admissible Elizabeth MORGAN, M.D., Plaintiff-Appellee, even absent clear and convincing proof of V. those other crimes or acts if proffered evidence Eric A. FORETICH; Vincent Foretich; is relevant to issue other than defendant's Doris Foretich, Defendants-Appellants. character and its probative value substantially Hilar}' FORETICH, an Infant who sues outweighs its prejudicial effect. Fed.Rules Through her mother and next friend, Evid.Rule 404(b), 28 U.S.C.A. Elizabeth MORGAN, M.D., Plaintiff-Appellee, 7 Cases that cite this headnote V. Eric A. FORETICH; Vincent Foretich; Doris Foretich, Defendants-Appellants. |2| Assault and Battery Admissibility in general Nos. 87-2549, 87-2550, 87-2558 and 87-2559. Evidence I Tendency to mislead or confuse Argued Jan. 6,1988. Evidence that four-year-old sexual abuse I plaintiffs older sister suffered similar abuse Decided May 17,1988. during visitation periods with defendants was I admissible on issue of identity, in that only Rehearing and Rehearing In defendants had access to both girls; possible Banc Denied July 21,1988. prejudice was outweighed by probative value Synopsis of evidence where case turned on issue Four-year-old child and her mother brought action of parties' credibility. Fed.Rules Evid.Rule against father and his parents for damages arising out 404(b), 28 U.S.C.A. of alleged sexual abuse of child. The United States 10 Cases that cite this headnote District Court for the Eastern District of Virginia, Richard L. Williams, J., entered judgment on jury verdict for defendants, and appeal was taken. The Court of Appeals, [3] Evidence Donald Russell, Circuit Judge, held that: (1) exclusion Acts and Statements Accompanying or of evidence that child's older sister had also been abused Connected with Transaction or Event was abuse of discretion, and (2) child's statements to her mother and psychiatrist were admissible.

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Although child is incompetent to testify, where statements were pertinent to plaintiffs testimony as to his spontaneous declarations treatment, and were reasonably relied upon or res gestae statements is nevertheless by psychiatrist in treating plaintiff. Fed.Rules admissible under excited utterance exception Evid.Rule 803(4), 28 U.S.C.A. to hearsay rule. Fed.Rules Evid.Rule 803(2), 28 U.S.C.A. 70 Cases that cite this headnote

30 Cases that cite this headnote [7] Evidence li- Statements made for purpose of medical [4] Evidence diagnosis or treatment Acts and Statements Accompanying or Fact that physician is consulted in order to Connected with Transaction or Event testify as witness rather than for treatment To qualify as excited utterance, within is irrelevant to determination of whether meaning of exception to hearsay rule, statements made to physician are admissible declarant must have experienced startling under medical diagnosis exception to hearsay event or condition and reacted under rule. Fed.Rules Evid.Rule 803(4), 28 U.S.C.A. stress or excitement of that event and not from reflection and fabrication. Fed.Rules 50 Cases that cite this headnote Evid.Rule 803(2). 28 U.S.C.A. [8] Damages 22 Cases that cite this headnote Mental suffering and emotional distress Allegation of four-year-old child's sexual [5] Evidence abuse was sufficient to state cause of action by Acts and Statements of Person Sick or mother for intentional infliction of emotional Injured distress, even if she was not present when acts Four-year-old sexual abuse plaintiffs of abuse were allegedly perpetrated. statements to her mother regarding abuse occurring during visitation with father were 10 Cases that cite this headnote admissible under excited utterance exception to hearsay rule where statements were made within three hours of plaintiffs first opportunity to speak with her mother, Attorneys and Law Firms plaintiff was nearly hysterical in moments *942 Mark Mitchell Katz (James E. Sharp, V. Thomas immediately preceding statements, and Lankford, Sharp, Green & Lankford, Washington, D.C., statements were corroborated by substantial on brief), for appellants. physical evidence and medical testimony. Fed.Rules Evid.Rule 803(2), 28 U.S.C.A. Robert B. Machen, Fairfax, Va., for appellees.

17 Cases that cite this headnote Before POWELL, Associate Justice (Retired), United States Supreme Court, sitting by designation, and |6J Evidence RUSSELL and ERVIN, Circuit Judges. Statements made for purpose of medical Opinion diagnosis or treatment Out-of-court statements made by four-year- DONALD RUSSELL, Circuit Judge. old sexual abuse plaintiff to her psychologist were admissible under medical diagnosis or The plaintiffs. Dr. Elizabeth Morgan and her minor treatment exception to hearsay rule, though daughter Hilary Foretich, brought this action against plaintiff was incompetent to testify as witness the defendants. Dr. Eric Foretich and his parents.

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for damages arising out of the defendants' alleged sexual abuse of Hilary. Dr. Foretich counter-claimed for Plaintiffs contend that the district court committed defamation and other damages caused by this lawsuit. reversible error in its evidentiary rulings. First, plaintiffs The jury found for Dr. Foretich on Dr. Morgan's claims assert that evidence of Heather's abuse should have been and for Dr. Morgan on Dr. Foretich's counter-claims. admitted to show the identity of the perpetrator and to Plaintiffs appealed, defendants cross-appealed, and the rebut claims that Hilary's injuries were accidental or self- appeals were consolidated for oral argument. Jurisdiction inflicted. Second, plaintiffs argue that statements made by is based on diversity of citizenship. Hilary to her mother after Hilary returned from visitation with Dr. Foretich were admissible as excited utterances. The determinative issue in this appeal is whether the Finally, plaintiffs contend that statements made by Hilary district court erred in excluding evidence that Hilary's to her psychologist were admissible as statements made sister had been sexually abused and in excluding all out- for purposes of medical diagnosis or treatment. of-court statements made by the plaintiff, Hilary Foretich. We conclude that the district court abused its discretion Defendants respond by arguing evidence of sexual abuse by excluding this evidence and we reverse and remand suffered by Heather Foretich was properly excluded that portion of its judgment. However, the district court because of its potential for prejudicing the jury. committed no error with regard to defendants' counter­ Defendants further assert that all out-of-court statements claims and we affirm that part of its judgment. made by Hilary Foretich were properly excluded because of hearsay considerations and because Hilary's age made her incompetent to testify as a witness. I.

Hilary Foretich was born in August 1982, the daughter II. of Dr. Eric Foretich and his third wife from whom he is now divorced, Dr. Elizabeth Morgan. Heather Foretich is three years older than Hilary and is the minor daughter General of Dr. Foretich and his second wife. Dr. Foretich was Reported cases of child abuse in this country have awarded visitation rights with both children and the girls increased dramatically in recent years. An estimated one have frequently visited the Foretich home simultaneously. in five females suffers from sexual abuse as a child.' In the stunmer of 1983, Dr. Morgan received a call Figures from 1976 to 1983 reflect an 852% increase in the from Heather's mother who expressed concern that the number of child sexual abuse cases reported.' However, girls were possibly being abused during visitation periods in two-thirds of child abuse cases, the incident is never with Dr. Foretich and his parents. Dr. Morgan became even reported. Even when the incident is reported, further alarmed when signs of physical abuse became prosecution is difficult and convictions are few. apparent on Hilary and later when Hilary displayed an age-inappropriate understanding of sexual matters Much of this difficulty stems from the fact that methods and began to make sexually explicit statements. After of proof in child abuse cases are severely lacking. Often, consulting specialists in the field of child sexual abuse, Dr. the child is the only witness. Yet age may make the child Morgan became convinced that Hilary was being abused incompetent to testify in court, and fear, especially when during the visitation *943 periods with Dr. Foretich and the perpetrator is a family member, may make the child his parents. This action followed. unwilling or unable to testify.

At trial, plaintiffs attempted to introduce out-of-court Courts and legislatures alike have struggled with this evidence showing that Hilary's sister. Heather, displayed deeply troubling problem. The courts have often been similar signs of sexual abuse. Plaintiffs also sought to criticized for expanding existing hearsay exceptions introduce statements made by Hilary to her mother and beyond recognition while several state legislatures have to a child psychologist. The district court excluded all evidence of this nature.

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undertaken to create altogether new hearsay exceptions proffered evidence can meet the threshold requirements of for the victims of child abuse. Rule 404(b).

In the form of a civil suit, the instant case squarely Rule 404(b) of the Federal Rules of Evidence provides that presents this Court with many of these difficult issues. In Evidence of other crimes, wrongs, rendering this judgment, we are mindful of the common- or acts is not admissible to sense admonition that “[w]hen the choice is between prove the character of a person evidence which is less than best and no evidence at in order to show action in all, only clear folly would dictate an across-the-board conformity therewith. It may, policy of doing without.” Fed.R.Evid. art. VIII advisory however, be admissible for other committee's note. purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or III. absence of mistake or accident.

Evidence of Abuse Suffered by This Court has held Rule 404(b) to be an “inclusionary Hilary's Sister, Heather Foretich rule” which “ ‘admits ail evidence of other crimes [or acts] relevant to an issue in a trial except that which tends At trial, plaintiffs sought to introduce testimony by Dr. to prove only criminal disposition.’ ” United States v. Charles Shubin, a pediatrician who was qualified as an Masters, 622 F.2d 83, 85 (4th Cir.1980) (emphasis added) expert in the field of child sexual abuse. Dr. Shubin had (quoting J. Weinstein & M. Berger, Weinstein's Evidence § examined both Hilary and Heather Foretich and was 404[08] at 404 41 and 404-42 (1979)). prepared to testify that both girls had suffered sexual injuries and that the mechanism of injury was essentially The threshold requirements for admitting evidence under the same in both cases. Plaintiffs also had numerous other Rule 404(b) were recently stated by this Court in United professionals and lay *944 witnesses who were prepared States V. Lewis, 780 F.2d 1140 (4th Cir.1986). In Lewis, we to testify that Heather had been sexually abused during stated the determinative questions to be (a) whether the visitation periods with the defendants. proffered evidence is relevant to an issue other than the defendant's character, and (b) whether the probative value The district court excluded all evidence of sexual abuse is substantially outweighed by its prejudicial effect. Id. at suffered by Heather Foretich concluding that such 1142. evidence was prejudicial and could not be allowed without a full scale trial on the allegations made by Heather. We [2| The proffered evidence of sexual abuse suffered disagree. by Heather is admissible under the standard set forth in Lewis. First, the evidence was not offered to show |1| As a preliminary matter, the district court erred in the depravity of the defendants' character. Rather, this concluding that a full scale trial would be required into evidence was highly relevant to disputed issues in this allegations made by Heather Foretich. This Court has case. Fundamentally, this evidence was essential in that held that in applying Rule 404(b) of the Federal Rules of it tended to identify the defendants as the perpetrators Evidence, evidence of other crimes need not be established of the crime against Hilary since only the defendants had by the “clear and convincing evidence” standard which access to both girls. No other piece of evidence could some other courts have seen fit to apply. Instead, “we have had a comparable probative impact as to the identity have not imposed any ‘clear and convincing evidence’ of Hilary's assailants. This evidence also negated several standard in our application of Rule 4()4(b)” and “we defenses raised by the defendants: Hilary's injuries were decline to adopt such a requirement.” United States r. caused by Dr. Morgan; were fabricated by Dr. Morgan; Martin. 773 F.2d 579, 582 (4th Cir. 1985). Rather, evidence or were caused by self-infliction. It has been suggested by of other crimes or acts will be admissible even absent clear some that, in child abuse cases, the inquiry should end and convincing proof of those other crimes or acts if the here: “When prior acts are admitted to prove disputed

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issues in the case, such as the identity of the defendant, the We have stated previously that the possibly prejudicial absence of mistake or accident, or the defendant's intent, effect of evidence can “ ‘require exclusion only in those no violation of the other crimes evidence rule exists.” instances where the trial judge believes that there is a Comment, Other Crimes Evidence to Prove the ‘Corpus genuine risk that the emotions of the jury will be excited to Delicti’ ofa Child Sexual Offense. 40 U. Miami L.Rev. 217, irrational behavior, and that this risk is disproportionate 220(1985). to the probative value of the offered evidence.’ ” Masters at 87 (quoting Trautman, Logical or Legal Relevancy— However, after determining that other acts are relevant A Conflict in Theory, 5 Vand.L.Rev. 385, 410 (1951- to an issue besides character, the question then becomes 52)). This is not that case. While we are cognizant of the whether the probative value of the evidence is substantially potential for prejudice in this case, we are also mindful of outweighed by its prejudicial effect. This question has the fact that the trial judge could have issued a limiting previously been addressed by this Court in the analogous instruction. Id. To simply exclude this evidence which case of United States v. Woods, 484 F.2d 127 (4th went not to the character of the accused but rather to Cir.1973), cert, denied, 415 U.S. 979, 94 S.Ct. 1566, 39 essential issues on trial and which was highly probative of L.Ed.2d 875 (1974). *945 In Woods, a case allowing the defendants' guilt was an abuse of discretion. criminal prosecution for the suffocation death of a young child, we allowed the government to introduce evidence of abuse suffered by other children whom the defendant IV. had access to even though the defendant was not accused of abusing the other children. We noted “when the crime is one of infanticide or child abuse, evidence of repeated Hilary's Statements to Her Mother incidents is especially relevant because it may be the only evidence to prove the crime.” Id. at 133. We further found Immediately after returning home from visitation periods with her father, Hilary would often appear extremely “the evidence [of other crimes or acts] is so persuasive and so necessary in case of infanticide or other child abuse by excited and agitated and would begin to describe to her mother sexual activities that had occurred during the suffocation if the wrongdoer is to be apprehended, that we visits. On the advice of her attorney. Dr. Morgan began to think its relevance clearly outweighs its prejudicial effect on the jury.” Id. at 135. We find the need for other act keep a diary recording Hilary's statements. evidence to be equally compelling in the context of child The district court originally ruled that Dr. Morgan could sexual abuse. By the very nature of the crime, there are not testify to what Hilary had told her. The court reasoned seldom any eyewitnesses. Therefore, as in this case, the that if the diary itself were to be admitted into evidence defendant's word is pitted against that of a young child then any such testimony by Dr. Morgan would merely and the older defendant will almost certainly have an edge be cumulative. However, at the conclusion of trial, the in credibility. court refused to admit the diary or excerpts into evidence finding that they were self-serving and full of irrelevancies. In this case, the jury was left to choose between believing Without ever reaching the merits of whether Dr. Morgan's the story of a young girl as related by several witnesses testimony or diary would fit within one of the exceptions or believing the testimony of her father, the doctor, to the hearsay rule, the district court effectively excluded who offered several plausible explanations for the child's all reports of what had transpired during visitation. injuries. However, had the jury been allowed to hear of the other sister's very similar injuries, the doctor's Plaintiffs contend that five statements made by Hilary explanations would no longer have been so plausible. to Dr. Morgan should be admitted under the excited Given the similarity of the injuries and the fact that only utterance exception to the hearsay rules. Fed.R.Evid. the defendants had access to both girls, the identity of 803(2). There follows a synopsis of the five statements the perpetrators becomes clearer. And given this evidence, the defenses of self-infliction, fabrication, or abuse by Dr. offered by the plaintiffs: Morgan become quite implausible.

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condition made while the declarant was under the stress of excitement March 25, 1985 caused by the event or condition. Hilary was returned home by Dr. Foretich to Dr. Morgan's housekeeper at 3:35 p.m. Dr. Morgan arrived The basis for this rule, which creates a hearsay exception at 4:35 to find Hilary running around the house yelling even when the declarant is available as a witness is the and shrieking excitedly. At 5:00, Hilary was calmed assumption that an excited declarant will not have had down enough to talk and began to describe how she had time to reflect on events and to fabricate. J. Weinstein & been sexually abused by the defendants. M. Berger, Weinstein's Evidence § 803(2)[01] (1984).

Defendant's first and strongest objection to the admission *946 May 20, 1985 of Hilary's out-of-court statements under the excited Hilary was returned at 3:30, Dr. Morgan returned home utterance exception is that Hilary would have been at 4:45. By 6:00, Hilary began to describe sexual assaults incompetent to testify at trial and should not, therefore, be •7 that had been perpetrated on her by the defendants. allowed to testify out of court. This argument is without merit. October 21, 1985 [3] We agree with the majority of courts that have Hilary was returned by her grandfather at 4:00 and was studied this issue and have reached the conclusion that again in a highly excited state. By 7:00, she had settled “although a child is incompetent to testify, testimony as down enough to report that she had been sexually to his spontaneous declarations or res gestae statements assaulted by the defendants. is nevertheless admissible.” Annotation, Admissibility of Testimony Regarding Spontaneous Declarations Made by One Incompetent to Testify at Trial, 15 A.L.R. 4th 1043 January 20, 1986 Q (1982). This issue has seldom been raised before the Hilary was returned by her father at 7:00 p.m. and began federal courts of appeals. However, those that have to tell her mother of sexual abuse that had occurred the examined the issue are in agreement with our holding Q night before by her father. today.

July 20, 1986 Likewise, the leading commentators have concluded that “an excited utterance is admissible despite the fact that the Hilary was watching television with Dr. Morgan and declarant was a child and would have been incompetent viewed a scene which prompted her to describe sexual as a witness for that reason.” McCormick, McCormick acts that had been performed on her by the defendants. on Evidence § 297 at 858 (3d Edition 1984). See also Defendants argue that these out-of-court statements made 6 Wigmore on Evidence § 1751 (Chadbourn Rev.1976). by Hilary to her mother were properly excluded because Therefore, should Hilary's out-of-court statements to her Hilary's age would have made her incompetent to testify mother otherwise qualify *947 as excited utterances, her as a witness and because the statements do not meet the youthful incompetency will not bar the admission of this requirements of the excited utterance exception to the testimony. hearsay rule. Hl To qualify as an excited utterance, the declarant must Rule 803 of the Federal Rules of Evidence provides in (1) have experienced a startling event or condition and (2) pertinent part reacted while under the stress or excitement of that event and not from reflection and fabrication. J. Weinstein & M. The following are not excluded by Berger, Weinstein's Evidence § 803(2)[01] at 803-87-91. the hearsay rule, even though the declarant is available as a witness:... There appears to be little doubt but that Hilary has (2) Excited utterance. A statement been subjected to a startling condition. Testimony of relating to a startling event or

WESTLAW © 2018 Thomson Reuters. No claim to original U.S. Government Works. Morgan v. Foretich, 846 F.2d 941 (1988) 56 USLW 2669, 25 Fed. R. Evid. Serv. 881 the doctors and other witnesses was sufficient to justify a finding that Hilary has been sexually abused. The In addition to the time lapse consideration, numerous question, then, is whether Hilary reacted while under the other factors of trustworthiness cited as important by stress of this condition. the Court in *948 Iron Shell are present in this case. All of the statements offered by plaintiffs were made To answer this question, several factors must be before Hilary was four years old, and it is virtually considered, including: (1) The lapse of time between the inconceivable that a child of this age would have either event and the declarations; (2) the age of the declarant; the extensive knowledge of sexual activities or the desire to (3) the physical and mental state of the declarant; (4) the lie about sexual abuse that would be required to fabricate characteristics of the event; and (5) the subject matter of a story such as the one told by Hilary. Hilary's tender the statements. United States v. Iron Shell, 633 F.2d 77, years greatly reduce the likelihood that reflection and 85-86 (8th Cir. 1980), cert, denied, 450 U.S. 1001,101 S.Ct. fabrication were involved. An examination of Hilary's 1709, 68 L.Ed.2d 203 (1981). physical and mental state shows that she was nearly hysterical in the moments immediately preceeding most of In Iron Shell, the Eighth Circuit held in a child sexual these statements. There can be little doubt but that she was abuse case that “[t]he lapse of time between the startling acting under the stress of the situation. Hilary's method event and the out-of-court statement although relevant is of giving these statements consisted of touching herself not dispositive in the application of rule 803(2).” Id. at 85. sexually and speaking in a vocabulary that definitely Indeed, much criticism has been directed at courts which belonged to a child which adds a “ring of verity to her place undue emphasis on the spontaneity requirement declarations.” Nick, 604 E.2d at 1204. Finally, Hilary's in child sexual abuse cases. *' It has been argued that story is corroborated by substantial physical evidence children do not necessarily understand sexual contact and doctors' testimony. All of these factors lead to the by adults to be shocking, especially when the adult is conclusion that Hilary's out-of-court statements to her a parental figure from whom the child desires love and mother are trustworthy and should have been admitted affection. Even if the child is aware of the nature of the into evidence. abuse, significant delays in reporting this abuse may occur because of confusion, guilt, and fear on the part of the On the whole, this case bears remarkable similarity to United States v. Nick, 604 F.2d at 1204 in which the Ninth child. 13 Circuit admitted statements made by a sexually abused boy to his mother as excited utterances because of the |5] One attempt to deal with this problem has been a following “significant guarantees of trustworthiness”: recognition that the time lapse to be considered in these cases is not simply the time between the abuse and the The statement was made while the child was still declaration. Rather, courts must also be cognizant of the suffering pain and distress from the assault. The childish child's first real opportunity to report the incident. terminology has the ring of verity and is entirely Plaintiffs declaration of July 20, 1986 has been proffered appropriate to a child of his tender years. The child's with absolutely no reference to the time of abuse or statement was corroborated by physical evidence ... the child's first opportunity to speak of the abuse and it is extremely unlikely that the statement under therefore cannot qualify as an excited utterance. However, these circumstances was fabricated. The statement was the first four statements proffered by the plaintiffs were unquestionably material, and it was more probative as made within three hours of the child's first opportunity to to the identity of the assailant than any other evidence, speak with her mother. except [defendant's] confession. The declaration to his mother [after arriving home and being questioned] was In determining whether a statement qualifies as an excited more, rather than less probative than testimony that he utterance, courts have varied greatly as to just how much might have been able to give months after the event even of a time lapse is too much. Given all of the other if the district court would have found him competent. factors of trustworthiness present in this case, we find that (Fed.R.Evid., Rule 601) The interests of justice were three hours is well within the bounds of reasonableness served by admitting the declaration of this child, who and Hilary's statements were spontaneous declarations.

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was the victim of a sexual assault, and far too young to depend on what is reported. Weinstein & Berger, supra, appreciate the implications of that assault. at 803-144. The two-part test set forth for admitting these hearsay statements is (1) “the declarant's motive Finally, that portion of the statement identifying in making the statement must be consistent with the [defendant] as the assailant is inherently trustworthy purposes of promoting treatment”; and, (2) “the content under all of the circumstances of this case. of the statement must be such as is reasonably relied on by Extrinsic evidence established that [defendant] had the a physician in treatment or diagnosis.” United Slates v. opportunity to commit the crime. The child knew Renville, 779 F.2d 430, 436 (8th Cir. 1985). [defendant] well, and he was not likely to mistake his assailant. The mother was not likely to have In Renville, the Court applied Rule 803(4) to an had any faulty recollection of the child's simple, intrafamily child abuse case such as the one at hand and shocking ... statement. Moreover, she herself was permitted the physician to testify both to the victim's subject to rigorous cross-examination on that score. statements of abuse and to the victim's identity of her assailant. Id. The Court concluded that not only would the The above could well have been written for the case young victim have a motive consistent with the purpose of at hand. We agree with the judgment of the Ninth treatment, but also, “Statements by a child abuse victim Circuit and conclude that based on the facts of this case, to a physician during an examination that the abuser the district court abused its discretion in not admitting is a member of the victim's immediate household are Hilary's four statements to her mother under the excited reasonably pertinent to treatment.” Id. at 436. We agree utterance exception to the hearsay rule. with the judgment of the Eighth Circuit that “[sjexual abuse of children at home presents a wholly different situation” from that normally encountered in Rule 803(4) V. cases and that situation requires great caution in excluding highly pertinent evidence. Id. at 437. Hilary's Statements to Her Psychologist Defendants contend that Hilary's incompetence to testify Plaintiffs introduced the testimony of Dr. Dennis as a witness in court renders her statements made for Harrison who had been qualified as an expert in the purposes of diagnosis or treatment inadmissible. This psychology and child abuse and who had spent over argument must fail. one hundred hours examining and working with Hilary Foretich. The district court permitted Dr. Harrison to give An individual's statements made for purposes of medical his opinion as to Hilary's abuse but excluded all out-of- diagnosis or treatment have frequently been admitted court statements which Hilary had made to him. into evidence regardless of whether that individual was competent to testify at trial. For instance, a physician [6] Plaintiffs contend that Dr. Harrison should have has been allowed to testify to statements made by a been allowed to repeat statements made by Hilary as victim of child abuse even though the child was only statements for purposes of medical diagnosis or treatment. three years old and “could not have been subjected to Fed.R.Evid. 803(4). cross-examination.” Nick, 604 F.2d at 1201-1202. See also United States v. Shaw, 824 F.2d 601 (8th Cir. 1987), cert. Defendants respond that this testimony was properly denied. — U.S. ----- , 108 S.Ct. 1033, 98 L.Ed.2d 997 excluded because of Hilary's incompetence to testify as a (1988) (Physician allowed to testify to statements made witness and because Dr. Harrison was sought more for the by nine year old victim); United States v. DeNoyer. 811 purpose of his testimony than his treatment. Defendant's F.2d 436 (8th Cir. 1987) (Social workers allowed to testify arguments are without merit. under 803(4) to statements made by a five year old victim); Renville. 779 F.2d 430 (Physician allowed to testify to *949 The hearsay exception for statements made for statements made by eleven year old victim); Iron Shell, 633 purposes of medical diagnosis or treatment is based F.2d 77 (Physician allowed to testify to statements made on the rationale that “the declarant's motive guarantees by nine year old victim). [the statements'] trustworthiness” since treatment will

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The fact that a young child may be incompetent to testify publicity, and intentional infliction of emotional distress at trial affects neither prong of the two-part test for arising out of publicity surrounding this litigation. The admitting evidence under 803(4). First, a young child will jury found for Dr. Morgan on defendants' counter-claims have the same motive to make true statements for the and defendants have appealed this judgment. Defendants purposes of diagnosis or treatment as an adult. Indeed, at have pointed to no error committed by the district court least one court has been influenced by the notion that this and the judgment in favor of Dr. Morgan on defendants' motive may be stronger on the part of the child: “The age counter-claims is affirmed. of the patient [nine] also mitigates against a finding that [her] statements were not within the traditional rationale [8] Additionally, defendants have cross-appealed from of the rule.” Iron Shell. 633 F.2d at 84. the district court's refusal to dismiss Dr. Morgan's claim for the intentional infliction of emotional distress. Second, the statements of a child are “reasonably relied on Defendants argue that Dr. Morgan failed to state a cause by a physician in treatment or diagnosis.” Renville, at 436. of action since she was never present when acts of abuse A physician certainly does not cease to listen to a patient's were perpetrated on Hilary. complaints simply because that patient is a child. In fact, as noted by the court in Renville, a physician *950 in The requisite elements for a cause of action for the determining treatment may rely on factors in child abuse intentional infliction of emotional distress are delineated cases such as an assailant's identity that would not be in IFowncA- v. Eldridge, 215 Va. 338,210 S.E.2d 145 (1974). relied on were the patient an adult. Womack does not require, and defendants have pointed to no Virginia case, which would require that a plaintiff Hilary's statements for purposes of diagnosis or treatment such as Dr. Morgan be present during the outrageous should have been admitted into evidence regardless of her conduct in order to recover for the intentional infliction competency to testify at trial. of emotional distress. The district court acted properly in refusing to dismiss this cause of action. [7] Defendant's contention that Hilary's statements to Dr. Harrison are inadmissible because Dr. Harrison was Finally, defendants have cross-appealed from the district consulted in order to testify as a witness rather than court's refusal to grant a directed verdict in favor of the for treatment is without merit. Rule 803(4) “abolished grandmother, Doris Foretich. As counsel for plaintiffs the [common-law] distinction between the doctor who agreed at oral argument that Doris Foretich could be is consulted for the purpose of treatment and an dismissed from this action, this issue need not be further examination for the purpose of diagnosis only: the latter addressed. usually refers to a doctor who is consulted only in order to testify as a witness.” Iron Shell, 633 F.2d at 83. Dr. Accordingly, the judgment of the district court is reversed Harrison's testimony to statements made by Hilary are and remanded in part and affirmed in part. therefore admissible regardless of why he was consulted. REVERSED AND REMANDED IN PART and We find no reason to justify the exclusion of statements AFFIRMED IN PART. made by Hilary to Dr. Harrison. Such statements should have been admitted as statements made for the purposes of medical diagnosis or treatment under 803(4). POWELL, Associate Justice, United States Supreme Court (Retired), concurring in part and dissenting in part. I join Parts I-IV and Part VI of the court's well- VI. reasoned opinion. As I have *951 some doubt as to the admissibility of the testimony of the psychologist, Dr. Harrison, I write separately on that question. At the Defendants' Counter-claims and Cross-appeals outset, I refer to the applicable standard of review when a district court's decision to exclude evidence is at issue. Defendants filed counter-claims against Dr. Morgan for defamation, publication of private facts, false light

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exception applicable to statements made to a physician for purposes of diagnosis or treatment. * At common law, this exception traditionally was based on a dual Few cases are more difficult to try than one of child abuse rationale. First, the declarant's purpose in making the where the child is very young and does not testify in court. statement normally assures its trustworthiness because Moreover, there is rarely a non-party witness to alleged diagnosis and treatment may depend on what the patient child abuse, with the result that rulings on admissibility of tells the physician. Secondly, a fact reliable enough to evidence on behalf of the child are particularly sensitive. serve as a basis for a physician's diagnosis or treatment This was such a case, and it was tried by an able and generally is considered sufficiently reliable to escape experienced district court judge. It must be remembered hearsay proscription. Thus, if the declarant's motive in that, in addition to assuring the fair presentation of a making the statement is consistent with the purpose of plaintiffs case, the district court has the responsibility promoting treatment, and the content of the statement of shielding defendants from the admission of unduly is reasonably relied on by a physician in formulating prejudicial evidence. This Circuit has recognized that a a diagnosis or mode of treatment, then the statement district court's determination to admit or exclude evidence presumptively is admissible. is not to be disturbed unless it has “abused its discretion.” United States v. MacDonald, 688 F.2d 224, 227-28 (4th Although the courts in Iron Shell and Renville would Cir.1982), cert, denied. 459 U.S. 1103, 103 S.Ct. 726, appear to allow the admission of statements made to a 74 L.Ed.2d 951 (1983). Accordingly, our review on this physician who is seeking a diagnosis in preparation for appeal is limited to a determination of whether the district litigation, they explicitly hold that “the declarant's motive court abused its discretion in excluding certain evidence in making the statement must be consistent with the offered on behalf of the appellants Hilary Foretich purposes of promoting treatment....” Renville, 779 F.2d at (“Hilary”) and her mother, Dr. Elizabeth Morgan. As 436. See also Iron Shell, 633 F.2d at 84. In Renville, the noted above, I am in complete agreement with the court found that: court's analysis and conclusion that the district court should have admitted evidence of the physical abuse Before questioning the child, [the of Hilary's half-sister Heather and certain out-or-court physician] explained to her that “excited utterances” made by Hilary to her mother. The the examination and his prospective district court's decision not to admit statements made by questions were necessary to obtain Hilary to the psychologist. Dr. Dennis Michael Harrison, information to treat *952 her and Ph.D., presents a closer question. I write to address it. help her overcome any physical and emotional problems which may have been caused by the recurrent abuse.

B 779 F.2d at 438. Therefore, “in the circumstances of this case, there were sufficient indicia of the declarant's The leading cases relied on by the court today are United proper motivation to ensure the trustworthiness of her State.'; v. Renville, 779 F.2d 430 (8th Cir.1985) and United statements to the testifying physician.” Id. at 439. In Iron States V. Iron Shell, 633 F.2d 77 (8th Cir.1980), cert, Shell, the court stated that “[w]e find no facts in the denied, 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203 record to indicate that [the child's] motive in making these (1981). In these cases, and all the other cases cited by the statements was other than as a patient seeking treatment.” court on this issue, the Eighth Circuit upheld the district 633 F.2d at 84. Therefore, in each of these cases the court's evidentiary rulings. In this case the court disagrees court found that the statements met both prongs of the with the court's evidentiary rulings below. traditional common-law test.

The court's holding that the district court abused its A significant difference found in this case is that, at discretion in excluding statements made to Dr. Harrison the time Hilary was questioned and examined by Dr. by Hilary is based on an application of the analysis Harrison, she was only four years of age. There is no used by the Renville and Iron Shell courts in applying evidence in the record that her frame of mind was Fed.R.Evid. 803(4). Rule 803(4) contains a hearsay comparable to a patient seeking treatment. Moreover,

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Circuit and the Advisory Committee Notes has in contrast to the circumstances in Renville, there is no evidence that Dr. Harrison ever explained to Hilary that less inherent reliability than evidence admitted under the traditional common-law standard underlying the his questions and relationship with her arose, at least in part, from a desire to treat her. Thus, an important physician treatment rule. The professional objectivity element contributing to the reliability of “physician of a physician responsible for treatment may well be treatment” statements that was explicitly found to be greater than that of a witness employed and paid to present in both Renville and Iron Shell, i.e. the strong testify as an expert. More importantly, the veracity of motive for the declarant to tell the truth in order to the declarant's statements to the physician is less certain promote treatment, has not been established in this where the statements need not have been made for case. Absent a finding that Hilary made her statements purposes of promoting treatment or facilitating diagnosis believing they would be used by Dr. Harrison to help her, in preparation for treatment. In my view, an appellate I am reluctant to rest my decision on the cases relied on court should be reluctant to disturb the discretion of a district court that has excluded such testimony on the by the court. ground that its prejudicial effect outweighs its probative In light of the facts before the court in this case, I think it value. See Fed.R.Evid. 403. But in this case, the reasons for exclusion by the district court are not clear. In is preferable to rely on a strict application of Rule 803(4) excluding Dr. Harrison's testimony as to what Hilary of the Federal Rules of Evidence. Rule 803(4) appears to have abolished the common-law distinction between told him, the court appeared to rely, without further those statements made while consulting a “physician” elaboration, only on the facts that “[Hilary] isn't here for purposes of examination and statements made while and her age and the circumstances of the case.” (J.A. at consulting him for purposes of testifying as a witness. 115). In light of *953 Rule 803(4), and the importance The Second Circuit has held that, in light of the Advisory of these statements to appellants' case, these reasons are Committee Notes to Rule 803(4), so long as the statements insufficient to justify exclusion of the evidence. made by an individual were relied on by the physician Rather than conclude, however, that Dr. Harrison's in formulating his opinion, they are admissible. O'Gee r. Dobbs Houses, Inc., 570 F.2d 1084, 1089 (2d Cir. 1978). See testimony should have been admitted into evidence, I also Weinstein & Berger, Evidence T| 803(4) [01]. Although would leave this question for reconsideration at the retrial this holding ignores the traditional common-law prong of of this case, if there should be a retrial. the rule that requires that the statements be made for the purposes of seeking treatment, it has clear support in the All Citations Advisory Committee Notes to Rule 803(4). 846 F.2d 941, 56 USLW 2669, 25 Fed. R. Evid. Serv. 881 It is appropriate to recognize, however, that evidence admitted under the standard discussed by the Second

Footnotes 1 D. Finkelhor, Sexually Victimized Children 53 (1979), cited in Note, The Testimony of Child Victims in Sex Abuse Prosecutions: Two Legislative Innovations, 98 Harv.L.Rev. 806 (1985). Comment, Legislative Responses to Child Sexual Abuse Cases: The Hearsay Exception and the Videotape Deposition, 34 Cath.U.L.Rev. 1021, n. 1 (1985). 3 Note, supra, note 1, at 806, n. 7. 4 See, e.g., Skoler, New Hearsay Exceptions for a Child's Statement of Sexual Abuse, 18 J. Marshall L.Rv. 1 (1984); Comment, The Sexually Abused Infant Hearsay Exception: A Constitutional Analysis, 8 J.Juv.L. 59 (1984); Note, A Comprehensive Approach to Child Hearsay Statements in Sex Abuse Cases, 83 Colum.L.Rev. 1745 (1983). 5 E. g., Wash.Rev.Code Ann. § 9A.44.120 (Supp.1982); Kan.Stat.Ann. § 60-460(dd) (Supp.1982). 6 See United States v. Wormick, 709 F.2d 454 (7th Cir. 1983); United States v. Leisure, 807 F.2d 143 (8th Cir. 1986). But see. United States v. Beechum, 582 F.2d 898 (5th Cir.1978), cert, denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472(1979).

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7 Rule 601 of the Federal Rules of Evidence states that “[e]very person is competent to be a witness except as otherwise provided in these rules.” However, since Hilary was never called as a witness, we are not directly faced with the issue of whether she would have been competent to testify at trial. Rather, we find that her statements are admissible regardless of her competency to testify in court. 8 See also Comment, supra, note 4 at 65 (“[T]he preponderance of authority is to the effect that admissibility of excited utterances is not affected by the declarant's incompetence due to infancy or other legal unavailability because the nature of the utterance is such that it obviates the usual sources of untrustworthiness in children's testimony."). 9 See United States v. Nick, 604 F.2d 1199,1202 (9th Cir.1979) (Three year old “could not have been subjected to cross- examination even if he had been called as a witness by reason of his tender years,” yet his statements were admissible under the spontaneous declaration exception.); Jones v. United States, 231 F.2d 244 (D.C.Cir.1956) (Five year old was incompetent to testify as a witness but statements to her mother were admissible as spontaneous declarations.) 10 See also J. Bulkley, Child Sexual Abuse and the Law, 155 (1982). 11 Note, A Comprehensive Approach to Child Hearsay Statements in Sex Abuse Cases, 83 Colum.L.Rev. 1745, 1756 (1983). 12 Id. 13 Id. at 1757. 14 See Nick, supra. Note 7, at 1201 (assault occurred sometime during the day. The defendant and the child were asleep when mother arrived to pick the child up and the child reported the assault only after getting home and being questioned by his mother); Kilgore v. State, 177 Ga.App. 656, 340 S.E.2d 640,643 (1986) (assault occurred sometime between 3:30 p.m. and 12:15 a.m. The child reported the assault only after being taken home and awakened. The court noted that the report was made at “the first real opportunity.”) 15 See Carter v. States, 44 Tex.Grim. 312, 70 S.W. 971 (1902) (Statement made by child within five minutes of the assault found to lack spontaneity); People v. Gage, 62 Mich. 271, 28 N.W. 835 (1886) (Child's statement to her mother three months after the assault was admissible); Annotation, Time Element As Affecting Admissibility of Statement or Complaint Made by Victim of Sex Crime as Res Gestae, Spontaneous Exclamation, or Excited Utterance, 89 ALR3d 102 (1979). 16 See Note, supra, note 11 at 1751. 17 Statements to psychiatrists or psychologists are admissible under 803(4) the same as statements to physicians. The advisory committee note to Rule 803(4) states that “[ujnder the exception the statement need not have been made to a physician. Statements to hospital attendants, ambulance drivers, or even members of the family might be included.” Fed.R.Evid. 803(4) advisory committee's note. There is no reason to exclude psychiatrists or psychologists from this list and the courts have not done so. See, Annotation, Admissibility of Statements Made for Purposes of Medical Diagnosis or Treatment As Hearsay Exception Under Rule 803(4) of the Federal Rules of Evidence, 55 A.L.R.Fed. 689, 699 (1981); United States v. LeChoco. 542 F.2d 84, 89, n. 6 (D.C.Cir.1976) (“The defendant's statements to his psychiatrist fall within the statement to a physician exception to the hearsay rule embodied in Rule 803(4)”). 18 See also O'Gee V. Dobbs Houses, /nc., 570 F.2d 1084,1089 (2d Cir. 1978) (“Rule 803(4) clearly permits” statements made to a non-treating physician); Fed.R.Evid. 803(4) advisory committee's note (“Conventional doctrine has excluded from the hearsay exception, as not within its guarantee of truthfulness, statements to a physician consulted only for the purpose of enabling him to testify. While these statements were not admissible as substantive evidence, the expert was allowed to state the basis of his opinion, including statements of this kind. The distinction thus called for was one most unlikely to be made by juries. The rule accordingly rejects the limitation”); Weinstein & Berger, supra, at 803-146 (“Rule 803(4)) rejects the distinction between treating and nontreating physicians”); Annotation, supra, note 17 at 692, (“[Sjtatements made to a physician consulted only for the purpose of allowing him to testify are now admissible under the Rule.”) 1 No distinction has been made where the statements in question were made to a psychologist rather than a physician. See Fed.R.Evid. 803(4) advisory committee's note. 2 These Notes explain that, at common law, statements made to a physician consulted only for the purpose of enabling him to testify were not admissible as substantive evidence. Rule 803(4) rejects this limitation because a physician, as an expert, is allowed to state the basis of his opinion, including statements of this kind. This calls for a distinction that juries are unlikely to make, and therefore the limitation has been abolished. In a civil case, where there is no Confrontation Clause problem, it was within Congress' discretion to approve a rule authorizing the admission of whatever evidence it thought appropriate, absent a due process violation.

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